Edited by Lorenzo Federico Pace
Chapter 6: Anticipated Enforcement in France of the Commission’s Guidance on Article 82
Catherine Prieto INTRODUCTION 1 In France, the Guidance on the Commission’s enforcement priorities in applying Article 82 EC is not seen as a radical change, but rather as a slow and constantly maturing process. For many years, those working on modernizing European competition policy have recommended an effectsbased approach instead of an excessively formalistic approach. In France, as well as in other European member states, debates have been heated. The main drawback is well known: a lack of legal certainty for undertakings as a result of a required auto-evaluation. But the benefit is considerable: greater efficiency thanks to improved and better-targeted implementation. The Commission’s objective has been properly understood, namely to find the right balance to limit the drawbacks as much as possible. In this regard, the development of commitments made the changes more acceptable to undertakings, and their lawyers in France have seized the advantages of this new kind of negotiated regulation. In contrast with static legal certainty, what we have now is a dynamic process in which the undertaking progressively produces its own legal certainty. But undertakings have to learn how to negotiate with the competition authorities as soon as a competition law concern is expressed. Unilateral practices are the last area to be concerned by this inexorable movement towards a modern economic approach. Thus, the content of the Guidance did not come as a surprise in French competition circles. It was more the delay in its publication which was irritating. Enforcement of the Guidance had already been...
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