Advances in Competition Policy Enforcement in the EU and North America
Edited by Abel M. Mateus and Teresa Moreira
Chapter 14: Abuses of Dominant Position and Monopolization: An Economic Perspective
14. Abuses of dominant position and monopolization: an economic perspective Patrick Rey 1. INTRODUCTION Given the status of the debate on the subject I will limit my remarks to the DG COMP paper on Article 82. I will try to identify the points on which an economist feels rather at ease with what percolates from the debate and the few remaining issues in which some progress may remain to be done. I will briefly cover the question of what the tests should be, and what kind of abuse we should be focusing upon. I will then briefly come back to the notion of an effects-based approach as opposed to a form-based approach, which I will illustrate with three examples: rebates, predation and efficiency benefits. 2. ARTICLE 82 VERSUS ARTICLE 81 AND MERGER CONTROL We have seen a modernization effort by the European Commission in the area of mergers (including changes in the criterion for the merger regulation) as well as in the area of Article 81; guidelines have moreover been provided in those areas. In contrast, the case law for Article 82 still appears somewhat form-based and the issuance of guidelines has been replaced by the European Commission with the announced publication of a guidance document indicating enforcement priorities. There is a strong demand both from the legal profession and from businesses for having good guidance, and I hope that the coming document will be as close to guidelines as possible. Judge Cooke reminds us in this volume that the...
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