Article 82 and Section 2: Abuse and Monopolizing Conduct
Barry E. Hawk
Fordham University School of Law
Issues of Competition Law and Policy, Vol. 2, p. 871, 2008
Fordham Law Legal Studies Research Paper No. 1301690
Differing historical contexts, such as the greater role of public companies and state-created monopolies in the EU, differing policy considerations such as the EU's traditional embrace of fairness, and differing underlying economic and juridical assumptions about, among others, market erosion and the capability of authorities and courts to identify and remedy anticompetitive conduct, all explain the traditionally broader scope of Article 82 compared with Section 2. However, the EU's increasing acceptance of mainstream economics, welfare analysis and an effects-oriented inquiry, together with the declining influence of the Ordoliberals, should narrow (but not eliminate) the present gap between Section 2 and Article 82.
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Date posted: November 18, 2008