Abuse of Economic Dependence - The Centre for European Policy ...

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.