The Treatment of Exclusionary Abuses under Article 82
The application of Article 82 of the EU Treaty to exclusionary abuses is currently subject to an in-depth review following the publication of a Discussion Paper drafted by a group of economists for the European Commission in December 2005. The need to adopt a “more economic approach” in the scrutiny of potentially anticompetitive unilateral conduct has been hailed with enthusiasm by most commentators during a recent consultation, although a lot needs to be done to ensure that the Commission adopts a satisfactory approach in defining relevant markets, assessing market power, and identifying the most appropriate remedies in case appreciable restrictions of competition are found. Following the publication of the Discussion Paper, the debate has focused mostly on the treatment of refusal to deal and refusal to grant interoperability, on the approach to tying/bundling, single branding and rebates, predatory pricing and after-markets. More recently, the debate has also extended to unfair pricing and price discrimination, especially after the landmark judgment of the European Court of First Instance in Glaxo in September 2006.
During 2007, the debate on the forthcoming Commission Guidelines on the application of Article 82 to exclusionary abuses will become even more intense, leading to a revised version of the Discussion Paper and a consultation with Member States. As of now, it is likely that the Guidelines will not be published before early 2008. As a result, the time is ripe to further stimulate the debate on how to ensure that the Commission defines a satisfactory approach to antitrust scrutiny under Article 82. For this reason, the Regulatory Affairs Programme at the Centre for European Policy Studies proposes to launch a “Task Force on the review of Article 82” composed by representatives from the European Commission, the European Parliament, National Competition Authorities, industry stakeholders, International Organisations and authoritative scholars in the field.
The Task Force will tackle all relevant aspects of the current review, covering both the policy underlying Article 82, the economic and legal issues surrounding its application and the most suitable way to enforce competition rules related to abuse of dominance. CEPS proposes to organise 4-5 meetings in the period June-November 2007, and to publish a Final Report of the Task Force by the end of 2007. A pre-meeting or “launch meeting” will be organised in early June 2007 in order to fine-tune the list of proposed topics according to the suggestions of the prospective Task Force participants.
John Temple Lang, Cleary Gottlieb Steen & Hamilton LLP; Former Director, DG Competition, European Commission
Andrea Renda, CEPS Senior Fellow
1st meeting: 25 February 2009
2nd meeting: 25 March 2009
3rd meeting: 30 April 2009
4th meeting: 12 May 2009
5th meeting: 24 June 2009
Task Force Report published in September 2009. It can be downloaded or purchased here.