Korah, Valentine --- "Guidance on the Commission’s Enforcement Priorities in Applying Article 82 to Abusive Exclusionary Conduct by Dominant Undertakings: From Protecting Freedom to Enter a Market to an Efficient Allocation of Resources to Increase Consumer Welfare" [2011] ELECD 291; in Pace, Federico Lorenzo (ed), "European Competition Law: The Impact of the Commission’s Guidance on Article 102" (Edward Elgar Publishing, 2011)

Book Title: European Competition Law: The Impact of the Commission’s Guidance on Article 102

Editor(s): Pace, Federico Lorenzo

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447738

Section: Chapter 2

Section Title: Guidance on the Commission’s Enforcement Priorities in Applying Article 82 to Abusive Exclusionary Conduct by Dominant Undertakings: From Protecting Freedom to Enter a Market to an Efficient Allocation of Resources to Increase Consumer Welfare

Author(s): Korah, Valentine

Number of pages: 17

Extract:

2. Guidance on the Commission's
Enforcement Priorities in
applying Article 82 to Abusive
Exclusionary Conduct by Dominant
Undertakings: from protecting
freedom to enter a market to an
efficient allocation of resources to
increase consumer welfare
Valentine Korah

1 INTRODUCTION

Two basic models of the function of competition law have influenced the
thinking of the Commission of the European Community (EC). The first
is the Ordoliberal view of freedom, adopted in reaction to Nazi tyranny
and the power of the cartels: freedom from state power and from powerful
firms. In this view, it is impossible to tell whether the outcome of conduct
by a dominant firm (Domco) would be efficient. Whether a particular price
is efficient depends on the preferences of consumers, usually unknown
until after the price is fixed. This can be determined only by competition
free from restraints.1 The Ordoliberals accepted the view that one of the
functions of competition is to produce an efficient allocation of resources
for the benefit of consumers. In contrast to many economists today
and recent statements from the Commission, however, the Ordoliberals
did not accept that `good outcomes' were the sole purpose of competi-
tion law. They were concerned also about the accumulation of political


1 See Friedrich August von Hayek, `Competition as a Discovery Procedure',

in Chiaki Nishiyama and Kurt R. Leube (eds), The Essence of Hayek (Hoover
Institution Press, Stanford, CA, 1984), Chapter 13.

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power by the ...