The Development of German and European Competition Law with Special Reference to the EU Commission’s Article 82 Guidance of 2008

European Competition Law: The Impact of the Commission’s Guidance on Article 102, pp. 25-62, Lorenzo F. Pace, ed., Elgar, 2011

Max Planck Private Law Research Paper No. 10/1

Posted: 17 Sep 2010 Last revised: 4 Aug 2012

See all articles by Ernst-Joachim Mestmäcker

Ernst-Joachim Mestmäcker

Max Planck Institute for Comparative and International Private Law

Date Written: September 17, 2010

Abstract

The purpose of this Monet lecture is a comparison of the EU Commission’s Article 82 (Art. 101) Guidance on abuse of dominant positions with equivalent member state rules and legislation. The EU Commission’s “more economic approach” to Article 82 and the relation of Article 82 (Art. 101) to member state law is governed by Section 3 Regulation I/2003. Member state authorities that apply their own provisions to practices that constitute an abuse under Article 82 shall also apply Article 82. Member states are entitled, however, to apply rules of single firm conduct that are stricter than Article 82 and rules that have purposes different from the competition rules. Within the general framework of competition law the term abuse indicates a wide space for teleological interpretation and invites a comparative analysis of different, even contradictory purposes. A German Statute of 1923 against “abuse of positions of economic power” and its applicability to the exploitation of such positions by the imposition of prices or trading conditions that endanger the national economy or public welfare influenced the abuse prohibition in the German Statute against restraints of competition (1958) as well as the text of Article 82. From its inception the purpose of the German Statute – contrary to the 1923 Regulation – has been the maintenance of free competition. The Commission’s Guidance on Article 82 is to implement its “more economic approach” in its application to the abuse of dominant positions. The resultant controversy on the relative relevance of efficiency and consumer welfare and freedom of competition mirrors the more traditional approach to Article 82, the influence of US Antitrust Policies and ideologies, the mainstream German approach and theoretical differences in relating law to economics. This is the historical and systematic context in which key issues of Union and German law in their comparative approaches to abuses of dominant positions are analysed. Comments on the European Court’s Microsoft Case highlight the role and the limits of an efficiency defence in Article 82 Cases.

Keywords: dominant positions, degrees of market dominance, concepts of abuse, history and interpretation, Continental Can Case, ordoliberalism, refusals to deal, predation, Microsoft Case

Suggested Citation

Mestmäcker, Ernst-Joachim, The Development of German and European Competition Law with Special Reference to the EU Commission’s Article 82 Guidance of 2008 (September 17, 2010). European Competition Law: The Impact of the Commission’s Guidance on Article 102, pp. 25-62, Lorenzo F. Pace, ed., Elgar, 2011, Max Planck Private Law Research Paper No. 10/1, Available at SSRN: https://ssrn.com/abstract=1678509 or http://dx.doi.org/10.2139/ssrn.1678509

Ernst-Joachim Mestmäcker (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

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