Advances in Competition Policy Enforcement in the EU and North America
Edited by Abel M. Mateus and Teresa Moreira
Chapter 12: Abuses of Dominant Position and Monopolization: Conclusions of the Major Debates in the EU and USA
Emil Paulis INTRODUCTION Let me congratulate the Portuguese Competition Authority for the organisation of this conference. We should remember that the first European Competition Day which Mario Monti, previous EC Competition Commissioner, launched, was held in Lisbon. I think that it is great that we have another opportunity to continue this tradition. This is the appropriate place, not only because of the current EU Portuguese Presidency but also because next month, in this country, there will be the signature of the new Lisbon Treaty, which is, of course, highly important for the development of the European Union. THE REVIEW OF ARTICLE 82 OF THE EC TREATY The European Commission launched a review of Article 82 of the EC Treaty. The Discussion Paper led to considerable debates, internally and also internationally, because the US side and other jurisdictions have fully engaged in a debate which has been extremely productive. I will divide my presentation in two parts. First, the lessons which we can distil from that review and, second, I will discuss some divergences between the European and the American approach. The most basic lesson is that we have come to recognise that there is a need to switch from a form-based approach to an effects-based approach. The form-based approach stopped at the level of identifying the ability to foreclose. The effects-based approach requires one step further, which is to look at the likelihood of foreclosure in the market. The form-based approach assumes, by and large, that there is a likely...
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