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.
The Antitrust F Word: Fairness Considerations in Competition Law
This paper explores value of fairness as a goal of competition law. It contrasts the developments in the US, where non-economic goals are largely discarded by the prevailing antitrust thinking, with those in the EU and China, where the pursuit of fair competition has been explicitly acknowledged and attempted according to different strategies, with mixed results. The main argument put forward is that a fairness-deprived antitrust policy which focuses solely on narrow interpretations of the concept of economic efficiency tends to perish, and is not sufficient to control the nefarious consequences of unrestrained market power. At the same time, there is a risk of unpredictability attached to fairness considerations which must be addressed to ensure legal certainty and to avoid the misuse of antitrust, an intricate yet very valuable piece of the legal system which, if used to its full potential, could serve to allow efficient firms to flourish protected from the risks inherent to unfair distortions of competition.
Article 82 EC: What Future for the Effects-Based Approach?
Analyses the European Commission guidance paper of December 2008 on the enforcement of the EC Treaty art.82 in respect of exclusionary conduct by dominant undertakings, including: (1) its tests of dominance; (2) its approaches to various forms of abuse of dominance; (3) the efficiency defence; (4) its enforcement priorities; (5) the establishment of safe harbours; and (6) the principles of simplicity and legal certainty. Considers whether the Commission's emphasis on consumer harm will prevail over the EU courts' concern with restriction of competition. Discusses the implications of the efficiency defence, with reference to the Commission's Decision in COMP/C-3/37.990-Intel.