The Reform of Article 82 EC in the Light of the “Economic Approach”

The European Commission’s attention has now shifted towards the development of a modernised approach to abuse control under Article 82 EC. In December 2005, the Commission published a Discussion Paper on the application of Article 82 EC to exclusionary abuses (the “Discussion Paper”). The Discussion Paper may eventually be transformed into guidelines, and guidelines on exploitative abuses and discrimination may follow. The review process leading to the Discussion Paper was accompanied by important decisions by the European Commission4 and by judgments of the European courts (the European Court of Justice and the Court of First Instance) on the application of Article 82 EC. These have triggered a lively debate on the criteria to be applied to assess dominant firms’ business practices. Critics of the present enforcement practice argue that it lacks a clear and coherent basis and focuses primarily on the form of an alleged anticompetitive act. It is argued that the effects of allegedly abusive behaviour on a particular market are not sufficiently taken into account, and so the current enforcement practice might chill competition by prohibiting procompetitive conduct. In turn, critics of the new approach argue that clear rules are necessary in order to enhance legal certainty and to ensure an expeditious handling of competition cases. They further point out that the key objective of EC competition law is to protect economic freedom and not consumer welfare.