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From Formalism to Effects? – The Commission’s Communication on Enforcement Priorities in Applying Article 82 EC

19 Pages Posted: 21 Sep 2009 Last revised: 3 Nov 2009

Nicolas Petit

University of Liege - School of Law; International Center for Law & Economics (ICLE); University of South Australia - School of Law

Date Written: July 8, 2009

Abstract

The purpose of the present article is to offer thoughts on the “Guidance Communication on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty” and, in particular, to review the requirements which the Commission must meet in Article 82 EC cases when it purports to apply the Communication’s economics-oriented, effects-based approach. In addition, this article seeks to assess whether the Communication’s effects-based approach really entails a paradigmatic shift towards increased competition economics, comparable to the (r)evolution that has taken place in other areas of EC antitrust enforcement since the early 2000. It comes to the conclusion that whilst the Communication marks a welcome economic sophistication of the Commission’s Article 82 EC enforcement policy, it nonetheless often fails to go beneath the surface of modern antitrust economics, and thus provide only limited guidance to firms and their counsels.

Keywords: dominance, abuse, European Commission, guidelines, guidance, economics, effects-based approach

Suggested Citation

Petit, Nicolas, From Formalism to Effects? – The Commission’s Communication on Enforcement Priorities in Applying Article 82 EC (July 8, 2009). World Competition: Law and Economics Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1476082 or http://dx.doi.org/10.2139/ssrn.1476082

Nicolas Petit (Contact Author)

University of Liege - School of Law ( email )

B-4000 Liege
Belgium

International Center for Law & Economics (ICLE) ( email )

United States

HOME PAGE: http://www.laweconcenter.org/contact.html

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia

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