2012年-CEPS欧洲政策研究中心_The_Requirements_for_a_Commission_Notice_on_the_Concept_of_Abuse_under_Article_82_EC_40页_218kb

Summary of "The Requirements for a Commission Notice on the Concept of Abuse under Article 82 EC"

Core Content

This report by John Temple Lang outlines the necessary requirements for a Commission Notice on the concept of abuse under Article 82 of the EC Treaty. The goal is to provide a clear, consistent, and economically sound legal framework for identifying and addressing exclusionary and exploitative abuses of dominant positions. The report emphasizes the need for a definition that aligns with legal principles rather than solely economic theories and addresses the current unsatisfactory state of the law.

Main Points of the Notice

The report identifies 15 key requirements that a satisfactory Commission Notice should fulfill:

1. Clear Legal Principle: The definition should be grounded in a clear legal basis and not solely on economic theory.
2. Comprehensive Principle: It should apply to all forms of exclusionary abuse, not just some.
3. Imperfect Information Compatibility: The definition should be usable with the information likely to be available to dominant companies.
4. No Intentional Dependency: It should not rely on the dominant company’s intent, as this is hard to prove and can be concealed.
5. Consistency with Article 81: The definition should align with Article 81, which governs agreements that restrict competition.
6. Efficient Competitors Only: It should not require identifying competitors that are not yet as efficient as the dominant enterprise.
7. Consistency with Article 82(c): The definition of exclusionary abuse must align with the definition of discrimination under Article 82(c).
8. Distinguish Procompetitive Conduct: It must allow for the distinction between legitimate procompetitive behavior and anti-competitive abuse.
9. No Undefined Residual Category: The definition should not leave room for an undefined category of exclusionary behavior.
10. No Regulatory Requirements: It should not justify regulatory interventions, which fall outside the scope of competition law.
11. Clear Handling of Pricing: It must provide clear guidance on what pricing practices are legal or illegal.
12. Partial Foreclosure is Sufficient: Complete exclusion from the market is not required for an act to be considered abusive.
13. Cumulative Abuses: The definition should cover cases where exclusionary effects arise from multiple types of conduct.
14. Existing Case Law: It should be consistent with established case law and clarify any problematic aspects.
15. Administerable: The definition must be practical and capable of being applied by courts and competition authorities.

Key Legal and Economic Considerations

• Limiting Test: The "limiting" test under Article 82(b) is proposed as the legal basis for exclusionary abuse. This test requires that the conduct limits the production, marketing, or technical development of competitors to the prejudice of consumers.
• Consumer Harm: Consumer harm is an essential element of exclusionary abuse, and the test must include this to align with both legal and economic principles.
• Procompetitive Conduct: The Notice must enable the distinction between procompetitive and anti-competitive behavior, such as when a dominant company offers better bargains to consumers.
• Pricing Abuses: The report outlines various economic tests for determining exploitative abuses, including price comparisons with costs, competitors, and economic value, as well as the use of unfair terms.

Conclusion

The report concludes that the "limiting" test under Article 82(b) is the most suitable for defining exclusionary abuse, as it meets all the outlined requirements. It also emphasizes the importance of distinguishing between exploitative and exclusionary abuses, and the need for a legal framework that is clear, consistent, and capable of being applied in practice. The legal and economic principles should guide the interpretation of Article 82, ensuring that competition law remains focused on preventing anti-competitive behavior rather than regulating prices directly.