European Competition Law: The Impact of the Commission’s Guidance on Article 102

European Competition Law: The Impact of the Commission’s Guidance on Article 102

Edited by Lorenzo Federico Pace

This timely book, with contributions from prominent experts including Luis Ortiz Blanco, Valentine Korah, Ernst-Joachim Mestmäcker, Lorenzo F. Pace and Richard Whish, examines the novel aspects of the 2009 Guidance on Article 102. They present a critical assessment of the Guidance that could be relevant to the result of the ongoing Commission’s investigations, for example, the opened procedure against Google.

Chapter 5: The Italian Way of Tackling the Abuse of a Dominant Position and the Inconsistencies of the Commission’s Guidance: Not a Notice/Bekanntmachung but a Communication/Mitteilung

Lorenzo Federico Pace

Subjects: law - academic, competition and antitrust law, european law


1 Lorenzo Federico Pace INTRODUCTION 1 Like the other contributions contained in this work, this chapter will provide a critical interpretation of the Commission’s Guidance and, after describing the development of the Italian rules safeguarding competition, it will identify how the Guidance will affect the interpretation of the Italian prohibition on abuse of a dominant position. 2 THE INCONSISTENCIES OF THE COMMISSION’S GUIDANCE: NOT A NOTICE/ BEKANNTMACHUNG BUT A COMMUNICATION/ MITTEILUNG Partly for reasons of space we shall not spend too much time on assessing the substance of the Guidance, which has already been fully done by the other contributors. On the other hand, we shall be devoting our attention 1 Thanks are due to Dr Salvatore Rebecchini, member of the Italian antitrust authority, Dr Alberto Pera (former Secretary General of the Italian antitrust authority), Professor Alberto Heimler (former Central Director of the Italian antitrust authority) and Dr Pier Luigi Parcu (former Director of Investigations in the Italian antitrust authority) for the useful discussions that were held to retrace the development of the Italian antitrust authority’s policy of enforcement. 103 M2541 - PACE PRINT.indd 103 04/03/2011 13:16 104 The impact of the Commission’s Guidance on Article 102 to certain contradictions and aspects where the legitimacy of the Guidance is in doubt. 2.1 Why the Guidance was issued Before passing comment on the Guidance, we have to say a few words on the reasons behind it. These can be traced back to the 1990s, when the Commission decided to modify...

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