Antitrust
Art 82 review
| Commissioner Neelie Kroes:
"The paper provides guidance by setting out an approach to deal with abuses of a dominant position by companies. This is in line with our approach to restrictive business practices and merger control, and to recent individual cases of abuses of dominant position. It will ensure that the Commission's intervention is effective, and should leave dominant undertakings in no doubt that they will find the Commission in their way wherever their conduct risks increasing prices, limiting consumer choice or dissuading innovation. Clear rules protecting consumers and promoting innovation are all the more important in times of economic difficulty such as these." |
Current status of review
The Commission has issued on 3 December 2008 Guidance on its enforcement priorities in applying Article 82 to abusive exclusionary conduct by dominant undertakings. After having undergone legal-linguistic revision, this Guidance was adopted in all Union languages on 9 February 2009.
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The Commission also issued a press release and a question and answers memo.
The text will also be published in all languages in the Official Journal in the C series on 24 February.
Background
The guidance paper sets out an economic and effects-based approach to exclusionary conduct under EC antitrust law. Such an approach has already been used in recent Article 82 cases, including Wanadoo, Microsoft (see questions and answers) and Télefonica (see questions and answers). This document provides for the first time comprehensive guidance to stakeholders,
in particular the business community and competition law enforcers at national level, as to how the Commission uses an effects-based approach to establish its enforcement priorities under Article 82 in relation to exclusionary conduct.
The Commission begun in 2005 a reflection on the policy underlying Article 82 and the way in which it should enforce that policy. The broad lines of that reflection were set out by Competition Commissioner Neelie Kroes in her speech of 23 September 2005 to the Fordham Corporate Law Institute.
In 2005 the Commission published a Staff Discussion Paper on the application of Article 82 of the Treaty to exclusionary abuses by dominant undertakings (read press release). More than one hundred comments were received. The most important topics raised by the replies were discussed in a public hearing in June 2006, followed by more public debate.
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