Foundations and Limitations
Edited by Josef Drexl, Wolfgang Kerber and Rupprecht Podszun
Chapter 5: Using Economics for Identifying Anticompetitive Unilateral Practices
Michele Polo* 1. INTRODUCTION The debate on competition policy among practitioners as well as academics has focussed in recent years on unilateral practices by dominant firms. Important cases such as the US and European Microsoft ones, the Intel case, the several cases on price squeeze that have involved most of the European telecom incumbents have highlighted the importance of this area of antitrust enforcement. Having completed important reforms on Article 101 TFEU and merger control in the first years of the decade, in 2004 the DG Competition moved to reshaping the enforcement of Article 102 TFEU (ex-Article 82 EC), pursuing an approach that rests on a deeper and intelligent use of the new findings of economic analysis in the enforcement against unilateral practices. In 2005 a first set of documents was proposed, with the report drafted by a group of economic advisors of the Chief Economist and the discussion paper by the officers. The two papers share a common approach that has been labelled as ‘effect-based’ or ‘more economic’ as opposed to the traditional form-based approach, although they differ in some cases in the way this view can be translated into specific guidelines and practices. The novelty of these proposals refers to the need to identify anticompetitive practices through a careful inspection of the specific situations and of the foreclosure effects of the practices, beyond their formal description (Gual et al. 2005, DG Competition 2005). The discussion has addressed both the methodological issues and the specific elements of the practices...
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