The Requirements for a Commission Notice on the Concept of Abuse under Article 82 EC. CEPS Special Reports, 10 December 2008

It has been widely felt that the law and economics under Article 82 EC on abuse of dominant positions are unsatisfactory, and that a Commission Notice stating and, where necessary, modifying the legal position is needed. This paper summarises the main points that a Notice needs to explain and gives the reasons why. This paper uses the now generally accepted classification of abuses into exploitative abuses (taking advantage of dominant positions: Article 82(a)): exclusionary or anticompetitive abuses (reducing or impeding competition: Article 82(b)): discrimination (Article 82 (c)) and reprisal abuses (conduct warning or punishing another company for competing vigorously or complaining to a competition authority). Some questions arise in connection with at least the first three kinds of abuse, but it will be seen that the most important questions concern the second kind. It is the kind that is most frequently found or alleged. So this paper gives more emphasis to the issues concerning exclusionary abuses. The paper begins with these issues, and discusses the main issues concerning other kinds of abuses separately. The structure of this paper is as follows: Part I lists the requirements that a satisfactory Notice will need to fulfil. Part II proposes a legal definition of exclusionary abuse based on Article 82(b). Part III considers several basic questions about other kinds of abuses. Part IV analyses pricing abuses, on which the Community law needs to be clarified or corrected. Part V compares several economic tests of foreclosure or monopolisation, discussed in the USA, with Article 82(b). Part VI sets out conclusions