Legal and Economic Analysis of a Transatlantic Antitrust Case
New Horizons in Competition Law and Economics series
Edited by Luca Rubini
Bo Vesterdorf At a first reading, Article 82 EC would seem a rather clear and simple rule of law. Quite simply, dominant undertakings may not abuse their position and the Article even indicates in a non-exhaustive way some types of conduct which may be abusive. At a closer look, things, however, become more complicated. On which market and when is the particular undertaking dominant? And, if dominant, what kind of conduct is abusive? And is this specific kind of conduct only abusive under specific circumstances? And even if one may have an instinctive, immediate reaction of finding of abuse in certain situations, it is not at all always easy to explain and give legal reasons in detail why. When discussing such issues it must, at the same time, be kept in mind that it appears indirectly from Article 82 EC, and very directly from the case law of the European Court of Justice and the Court of First Instance (CFI), that dominant undertakings are also entitled to compete, even vigorously, as long as they compete on the merits of their products or services. They are therefore also entitled to acquire intellectual property rights (IPRs) and benefit from the protection accorded by such rights under the law, and exercise and defend these rights vis-a-vis their competitors or others. They are evidently also entitled, and should be encouraged, to innovate and in that connection have the right to defend against free-riding. However, they are indeed also obliged to respect and abide by...
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