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8 A Gap in the Enforcement of Article 82 The European Commission Notice on the Application of Article 81(3) provides that: ‘The concept of “consumers” encompasses all direct or indirect users of the products covered by the agreement, including producers that use the products as an input, wholesalers, retailers and final consumers, i.e. natural persons who are acting for purposes which can be regarded as outside their trade or profession. In other words, consumers within the meaning of Article 81(3) are the customers of the parties to the agreement and subsequent purchasers. These customers can be undertakings as in the case of buyers of industrial machinery or an input for further processing or final consumers as for instance in the case of buyers of impulse ice-cream or bicycles.’ 12 The Commission further states that 13 the objective of Article 81 is to protect competition on the market as a means of enhancing consumer welfare, which must be the same for Article 82 as Article 81 and 82 seek to achieve the same aim. 14 Commissioner Kroes argued that: ‘[C]onsumer welfare is now well established as the standard the Commission applies when assessing mergers and infringements of the Treaty rules on cartels and monopolies … An effects-based approach, grounded in solid economics, ensures that citizens enjoy the benefits of a competitive, dynamic market economy.’ 15 In addition, Commissioner Kroes in her speech of 23 September 2005 to the Fordham Corporate Law Institute mentioned that the objective of Article 82 is the protection of competition on the market as a means of enhancing consumer welfare and ensuring an efficient allocation of resources. 16 12 European Commission Notice Guidelines on the Application of Article 81(3) [2004] OJ C101, para 84. 13 European Commission Notice Guidelines on the Application of Article 81(3) [2004] OJ C101, paragraphs 13 and 33. 14 Case C-6/72 Continental Can v Commission [1973] ECR 215, § 25. 15 N Kroes, ‘European Competition Policy: Delivering Better Markets and Better Choices’, 15 September 2005, available at http://europa.eu/rapid/pressReleasesAction.do? reference=SPEECH/05/512 &format=HTML&aged=0&language=EN&guiLanguage =en. 16 N Kroes, ‘Preliminary Thoughts on Policy Review of Article 82’ speech given on 23 September at the Fordham Corporate Law Institute New York (2005). http://europa.eu/ rapid/pressReleasesAction.do?reference=SPEECH/05/537&format=HTML&aged=0&langua ge=EN&guiLanguage=en.
Objectives of Article 82 9 Director General of DG Competition, Philip Lowe emphasized that ‘competition is not an end in itself, but an instrument designed to achieve a certain public interest objective, consumer welfare’. 17 According to Eilmansberger, 18 the objective of Article 82 is ultimately pursued for the benefit of consumer and consumer welfare is one, if not the foremost rationale of abuse control. Article 82 applies to practices that directly and indirectly 19 damage consumers. The Economic Advisory Group for Competition Policy in its report on Article 82 states that: Referring to this [consumer welfare added] standard is all the more important because, in the actual proceedings on a given case, competitors are usually much better organized than consumers. The competition authority receives more complaints and more material from competitors, so the procedure tends to be biased towards the protection of competitors. Developing a routine for assessing consumer welfare effects provides a counterweight to this bias. 20 The Economic Advisory Group adds that an economic approach to Article 82 focuses on improved consumer welfare and thus avoids confusing the protection of competition with the protection of competitors. An economics-based approach requires a careful examination of how competition works in each particular market in order to evaluate how specific company strategies affect consumer welfare. Such an approach ensures that anticompetitive behaviour does not outwit legal provisions and guarantees that the statutory provisions do not unduly thwart pro-competitive strategies. 21 According to the Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings (‘Guidance Paper’): 22 17 ‘Preserving and Promoting Competition: A European Response’, EC Competition Policy Newsletter, 2006–Number 2–Summer. 18 Eilsmanberger T (2006), ‘Dominance—The Lost Child? How Effects Based Rules Could and Should Change Analysis’, European Competition Journal 15–29, 18. 19 Through their impact on the structure of competition. See further: T Eilsmanberger (n 18) 15–29, 18, for a list of relevant cases. 20 Report by the EAGCP, ‘An Economic Approach to Article 82’ (July 2005) 9. 21 See further page 2. EAGCP Report. 22 http://ec.europa.eu/comm/competition/antitrust/art82/ guidance_en.pdf. For comments on the Discussion Paper see indicatively Niels/Jenkins, ‘Reform of Article 82: Where the Link Between Dominance and Effects Breaks Down’ [2005] ECLR 605; Bishop/Marsden, Editorial, ‘The Article 82 Discussion Paper: A missed opportunity’ [2006] European Competition Journal 1; D S Evans & A J Padilla, ‘Designing Antitrust Rules for Assessing Unilateral Practices: A Neo–Chicago Approach’ 72 U Chi L Rev 73, 90–91 (2005); J Tirole, ‘The Analysis of Tying Cases: A Primer’ [2005] 1 Comp Policy Int’l 14–15; R O’Donoghue and A J Padilla, The Law and Economics of Article 82 EC (2006) 482.
Page 1 and 2: Introduction The Treaty of Rome 195
Page 3 and 4: Introduction 3 tion of this concept
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from the legal norm itself. Article
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CHAPTER 5 How to Rectify the Gap Ge
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How to Rectify the Gap 81 As Faull
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How to Rectify the Gap 85 An argume
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How to Rectify the Gap 89 mentioned
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How to Rectify the Gap 91 proportio
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How to Rectify the Gap 93 Depending
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How to Rectify the Gap 95 cases is
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98 A Gap in the Enforcement of Arti
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100 A Gap in the Enforcement of Art
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102 A Gap in the Enforcement of Art
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Annex 1 REPORT PREPARED BY THE ICN
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Annex 2 REPORT PREPARED BY THE ICN
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Annex 4 Appendix C of the ICN Kyoto
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112 Bibliography P Callol, P Pignat
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114 Bibliography Guidance on the Co
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116 Bibliography J Leibowitz, ‘Ta
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118 Bibliography I Roudard (1989),
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120 Bibliography The Distillers Com
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