Article 82 EC - The Problems and the Solution

37 Pages Posted: 15 Sep 2009  

John Temple Lang

University of Dublin - Trinity College; Cleary Gottlieb Steen & Hamilton LLP

Date Written: September 3, 2009

Abstract

The Commission's Guidance paper on exclusionary abuse under Article 82 EC is open to three fundamental criticisms. First, it leads to less legal certainty, because the rules suggested are vague and imprecise, because dominant companies will not have the information needed to apply them, and because the Commission is trying to change the law, which it has no power to do. Second, it would lead to some anticompetitive effects, because in practice it discourages price competition, by discouraging individualised price negotiations and retroactive rebates, and by suggesting that the Commission will protect not-yet-as-efficient competitors from price competition. Third, it leads to too many "false positives", i.e., findings of exclusionary abuse that are not justified in economics or law. The solution is to return to the test in the Treaty as interpreted by the Court of Justice: an exclusionary abuse must involve limiting the production, marketing or technical development of competitors of the dominant company, if harm is caused to consumers.

Keywords: Article 82EC, Competition, Abuse

JEL Classification: K21

Suggested Citation

Temple Lang, John, Article 82 EC - The Problems and the Solution (September 3, 2009). FEEM Working Paper No. 65.2009. Available at SSRN: https://ssrn.com/abstract=1467747 or http://dx.doi.org/10.2139/ssrn.1467747

John Temple Lang (Contact Author)

University of Dublin - Trinity College ( email )

2-3 College Green
Dublin 2, Leinster 2
Ireland

Cleary Gottlieb Steen & Hamilton LLP ( email )

Rue de la Loi 57
Brussels, 1040
Belgium

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