Distinguishing Legitimate Price Competition from Unlawful Exclusionary Behaviour: Reconciling and Rationalising the Case-Law
This paper analyses EU cases on abuse of a dominant position dealing with low cost pricing by a dominant firm to determine: (i) whether they are consistent with each other and the goals underpinning the EU competition laws: (ii) whether any evolution in the case-law can be detected and (iii) what changes can be anticipated in the future and would be desirable to ensure the law’s coherence. In particular, it considers the implications of the judgment of the General Court in Intel which has reignited the debate about the philosophical basis of EU competition law and the question of how ‘abusive’ conduct can or should be identified. The paper concludes that there is a need to rationalise the case law and for the EU Courts to explain more fully the policy underpinning the cases, when it is legitimate to rely on presumptions of illegality in the context of Article 102, how the various types of abuse relate to each other and how case-law under Article 101 can, or should, impact on the development of principles under Article 102. As the Court of Justice will have the opportunity to address many of these issues in the appeal from the General Court’s judgment in Intel, the paper examines some of the important issues which require assessment in that judgment.
A Commentary on DG Competition's Discussion Paper
DG CompetitionA¢â‚¬â„¢s discussion paper appears to signal a departure from the form-based approach articulated most strongly in Michelin II . However, its full significance is limited by the enunciation of a precautionary principle under which abuse is framed to capture any conduct likely to limit entry or expansion and justification is limited to the narrowest plausible extent.
Competition Economics and Antitrust in Europe
type="main" xml:lang="en"> This paper aims to assess the influence that economic analysis has had on competition policy in the European Union over the last twenty years. Economists are increasingly used in antitrust cases; the annual turnover of the main economic consultancy firms has increased by a factor of 20 since the early 1990s and currently exceeds £20 million. This is about 15% of the aggregate fees earned on antitrust cases, a proportion close to that in the US. The economic resources mobilized by the EU Commission are, however, an order of magnitude smaller and this imbalance is a source of concern. The legal framework and the case decisions have also been influenced by economic analysis in important ways. For instance, the analysis of agreements between firms has increasingly focused on effects; the analysis of the factors that determine effective competition has become more sophisticated; the concept of collective dominance has been progressively developed in terms of the theory of collusion in repeated interactions, and quantitative methods have become more important. However, enforcement has sometimes appealed to economic reasoning in flawed or speculative ways; the paper discusses procedural reasons why this may have occurred. This paper assesses the system of evidence gathering implemented by the Commission in the light of the law and economics literature. It is concluded that while the reforms recently implemented by the Commission do address the main weaknesses of this system, they may still not allow for the most effective development of economic theory and evidence in actual cases. — Damien J. Neven