Editorial: The Article 82 Discussion Paper: A Missed Opportunity
European Competition Journal, Vol. 2, No. 1, p. 1, April 2006
7 Pages Posted: 14 May 2007
In December 2005, the European Commission published a Discussion Paper which discusses the competitive analysis of conduct of dominant firms that might constitute exclusionary abuse. The introduction and general tone of the paper, reflecting the comments made by the Commissioner for Competition at Fordham 2005, suggest a move towards an effects-based approach whereby consumer welfare and economic efficiency are the guiding principles in the application of EC competition law. The adoption of an effects-based regime, if realised, would be a positive development. Past experience and economic analysis have shown that a form-based approach generally fails to protect consumer interests, not least by discouraging pro-competitive practices. Bishop and Marsden therefore consider whether the Discussion Paper does indeed embody a more effects-based approach or whether it simply represents continued formalism, albeit dressed up with some new jargon.
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