Article 82: The Last Frontier – Fighting Fire With Fire?

Since the entry into force of the European Union (“EU”) merger regulation in September 1990, there has been progress toward the acceptance of the need for rigorous economic analysis as the basis for the application of Community competition law. Although the path toward sound economic analysis has been uneven and recognition of the principle has sometimes exceeded its correct application, the increased willingness to acknowledge economic analysis as the basis for rational enforcement action should not be underestimated. The most noticeable and obvious success has been in the field of merger control. But even a statute as venerable as Article 81, whose early interpretation can be traced to a tradition of political economy (ordoliberalism) unrelated to economic analysis, has been subjected to far-reaching reinterpretation, most notably by the European Courts. The result has been a relaxation of the strict application of the formalistic approach to Article 81(1) according to which any restriction on the individual freedom of action of an economic operator must be equated with a restriction on competition