Edited by Josef Drexl, Laurence Idot and Joël Monéger
Chapter 10: Restrictive Agreements and Unilateral Restraints: Merging Regimes on Market Power and Exclusion
Thomas Eilmansberger* 1 INTRODUCTION 1.1 Scope of this Presentation The title of this session is a bit ambiguous, for it can mean two things, namely (i) merging regimes regarding the assessment of market power on the one hand and exclusion on the other, or (ii) merging regimes on marketpower-related exclusion. I took the liberty to choose the second variant, and I furthermore inferred from the ﬁrst part of the title that the regimes mentioned in its second part are those in Article 81 and Article 82 EC. Also taking into account the overall theme of this conference, I reformulated the basic question of my presentation as follows: Does an increased role for economic analysis bring about a convergence of EC competition rules on cartels and dominant ﬁrms with regard to exclusionary practices? In addition, I will brieﬂy examine whether a more prominent use of economic analysis has brought about, or might bring about, a merging of regimes with regard to the diﬀerent exclusionary practices caught only by Article 82 EC. 1.2 What does an Increased Use of Economic Analysis Mean? A discussion of the actual and potential eﬀect of an increased use of economic analysis in competition law should ﬁrst clarify the meaning and import of economic analysis in antitrust law. It is assumed here that economic analysis can inﬂuence the antitrust analysis of agreements and unilateral conduct in two largely beneﬁcial ways but may, in addition, also assume a more controversial role. * Prof. DDr...
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