Chillin'Competition

In this article, Nicolas Petit argues that the adoption of the Commission’s Guidance on article 82 marks a welcome improvement in Article 82 EC enforcement.  The effects-based approach promoted in the Guidance places the Commission under mounting evidentiary thresholds.  Should it be applied in future Article 82 EC cases, one can expect a likely upgrade in DG COMP’s decisional output.

This notwithstanding, several provisions of the Guidance are problematic like the analysis of consumer harm, which is particularly unsatisfactory.  Whilst, from the outset, the Guidance claims that consumer welfare is a pivotal objective in Article 82 EC enforcement,  the Guidance’s provisions on the factors and methods relevant to the assessment of consumer harm remain extremely unclear.  In the same vein, whilst the Guidance requires the proof of a causal link between foreclosure and the dominant firm’s conduct, it illogically fails to impose a similar causation requirement in respect of consumer harm and foreclosure.  Overall, the assessment of the Guidance’s effects-based approach is mixed.

Download: From Formalism to Effects? – The Commission’s Guidance on Article 82 EC (en)