Openbare discussie over marktdominantie - vraag en antwoord (en)

(see also IP/05/1626)

The Discussion Paper only addresses exclusionary abuses. Does that mean that the review does not cover exploitative and discriminatory abuses?

No. The Commission is also reviewing its policy towards exploitative and discriminatory abuses. The work has started but is not yet at the state of public consultation.

Will the Discussion Paper eventually be turned into Commission Guidelines on Article 82?

It is too early to say. The first step is to see the results of the public consultation. It is clear that the Commission would like to give guidance on the application of Article 82, but the Commission will reflect on the precise form this guidance will take following the consultation.

Do the proposals made in the Discussion Paper indicate that the Commission wants to change its policy radically or pursue Article 82 infringements less vigorously?

Not at all. The Commission simply wants to develop and explain theories of harm on the basis of a sound economic assessment for the most frequent types of abusive behaviour to make it easier to understand its policy. The Commission will continue to pursue vigorously exclusionary conduct by dominant companies which is likely to harm competition and thereby consumers.

Is the purpose of the review to align Community competition law with the law of other jurisdictions?

Discussions with other competition authorities show an increasing consensus on the principles of competition law enforcement, and the Commission anticipates that this convergence will continue. However convergence with other jurisdictions is not the purpose of the review. The purpose is rather to ensure a consistent policy on the basis of sound economic assessments. Convergence may be a positive side-benefit of the deliberations going on both in Europe and in other jurisdictions.

Will the proposals in the Discussion Paper lead to increased legal uncertainty because of the complicated economic analysis needed?

The only way to have "absolute" legal certainty is to say clearly that certain types of conduct are always illegal (or legal). This is the right solution only when the conduct almost always is harmful to consumers, as, for instance, the fixing of prices by cartels. Most of the types of conduct covered by Article 82 can have both anti-competitive and pro-competitive effects and therefore cannot always be legal or illegal. The challenge is therefore to identify the core economic concern, and then to create transparent and workable proxies as rules for when such conduct is indeed illegal. The ultimate objective is to design a workable and operational tool both for making enforcement decisions by competition authorities and for dominant companies to know whether their conduct is legal. This is the aim behind the proposals made in the Discussion Paper.

The Commission is promoting private damage claims in national courts. Will the proposals in the Discussion Paper not make the application of Article 82 by national courts more difficult in view of the increased emphasis on economic analysis?

The Discussion Paper proposes an approach focusing on "economic effects". This means that it aims at distinguishing those kinds of behaviour that are likely to harm competition and thereby consumers and the circumstances in which such harm is likely to occur. By presenting a framework for analysis of competitive harm, the paper invites courts to ask the right questions. Although it will be necessary for courts to weigh the economic evidence presented to them, the paper is intended to help them to identify which elements of the evidence are relevant and determine the relative importance of those elements. There is no contradiction between economic analysis and private damage claims; and there is no evidence that jurisdictions with more economic analysis have fewer private damage claims.

With the review of its Article 82 policy, is the Commission admitting that some of its decisions adopted in the past were decided wrongly? If such cases are still pending, should they not be withdrawn by the Commission?

No. There is nothing in the discussion paper that calls into question any of the Commission's past decisions. At the same time, the Commission must always work to improve its decisions and its policies. The review is about a better focus and a better argumentation in future cases. Furthermore, the fact that if the discussion paper leads to a more refined economic analysis, the Commission would in future argue a case in a different way than in the past, does not mean that the decision taken in a past case was wrong, only that the argumentation would today have been different.

How will the Commission make sure that the national competition agencies and national courts follow any guidelines it may decide to adopt?

The Commission cannot require national competition agencies and national courts to follow Commission guidelines. However, the Discussion Paper has been discussed extensively with the national competition authorities and so will any possible future guidelines. It is therefore likely that there will be a good deal of agreement on the content on such guidelines among the competition authorities. It is also likely that such agreement will be reflected in the interpretations of national courts. Ultimately it is, however, the European Courts that will decide on whether the Commission's approach is correct.