Economic Theory and Competition Law
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Economic Theory and Competition Law

Edited by Josef Drexl, Laurence Idot and Joël Monéger

The context for this book is the increasingly complex relationship between economic theory and competition law which gives rise to lively political and academic debate on the direction competition law should take in a more global and innovation-oriented market place.
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Chapter 10: Restrictive Agreements and Unilateral Restraints: Merging Regimes on Market Power and Exclusion

Thomas Eilmansberger


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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