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 7: National Competition Law Goals and the Commission’s Guidance on Article 82 EC: The UK Experience

Richard Whish

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


Richard Whish INTRODUCTION 1 Article 82 EC is primarily directed towards the unilateral conduct of individually dominant firms which use their market power in an exploitative or in an exclusionary manner; Article 82 can also apply to the unilateral or collective abuse of a collective dominant position, a subject that will not be discussed in this chapter. The application of Article 82 to individually dominant undertakings in practice has, for many years, been controversial: this subject has probably attracted more criticism than any other topic within European Community competition law. This chapter will consider briefly the nature of this criticism and the European Commission’s reaction to it, specifically in the form of its 2009 Communication entitled ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’1 (hereafter ‘the Guidance’); it will then consider the UK experience of dealing with the unilateral behaviour of dominant undertakings, in particular in the years since 2000, when the Competition Act 1998 entered into force. Section 2 of this chapter discusses the background to and the contents of the Commission’s Guidance, and explains why this author considers the Guidance to be an important and timely contribution to our collective understanding of this difficult subject. Section 3 describes in outline the historical position in the UK on the subject of unilateral behaviour, dating back to 1948; it then introduces the two modern statutes that address this topic, namely the Competition Act 1998 and the Enterprise...

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