Chillin'Competition

The Commission’s prosecutorial bias in official writing… I did not immediately notice, but this is undeniably a big, important, mistake.

At § 12 of its Guidance Communication on its enforcement priorities in applying Article 82 to abusive exclusionary conduct by dominant undertakings, the Commission explains the objective methodology that it will follow to assess dominance.

Read carefully:

The assessment of dominance will take into account the competitive structure of the market, and in particular the following factors: • constraints imposed by the existing supplies from, and the position on the market of, actual competitors (the market position of the dominant undertaking and its competitors);

Read again:

The assessment of dominance will take into account the competitive structure of themarket, and in particular the following factors:• constraints imposed by the existing supplies from, and the position on the market of, actual competitors (the market position of the dominant undertaking and its competitors);

In other words, the Commission pretends it will systematically review whether there is dominance, but meanwhile implies that this three stages approach is entirely redundant, because it has already reached this finding. A strong candidate for the 2009 worst antitrust law prize?

(Image source: here)