Rey, Patrick --- "Abuses of Dominant Position and Monopolization: An Economic Perspective" [2010] ELECD 362; in Mateus, M. Abel; Moreira, Teresa (eds), "Competition Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Competition Law and Economics

Editor(s): Mateus, M. Abel; Moreira, Teresa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449992

Section: Chapter 14

Section Title: Abuses of Dominant Position and Monopolization: An Economic Perspective

Author(s): Rey, Patrick

Number of pages: 10

Extract:

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appears somewhat form-based and the issuance of guidelines has been
replaced by the European Commission with the announced publication of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 ...