A Missed Opportunity: Why The Guidance Paper Does Not Increase Predictability or Advance the Debate

May 2009
Concurrences Review N° 2-2009
James R.M. Killick, Dr. Assimakis Komninos

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The European Commission published its long-awaited guidelines on exclusionary abuses under Article 82 EC in late 2008. This article explains why the new guidelines do not succeed in modernising European law by replacing the formalism of the past with a convincing approach driven by consumer harm and why they thus also fail to promote convergence between US and EU rules on single firm conduct. Unfortunately, formalism co-exists with a more economics-based analysis. This prevents the Communication from successfully modernising the enforcement of Article 82 EC and taking the debate forwards – and the contradiction does not help predictability of outcome.

The article was first published in Concurrences Review N° 2-2009, www.concurrences.com.

The information in this article is for educational purposes only; it should not be construed as legal advice.

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