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Yves Botteman, Kenneth Ewing, Feb 09, 2009
On December 3, 2008, the European Commission published a guidance document (“Guidance”) concerning the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant companies. The Guidance affirms in general terms the Commission’s intent to focus enforcement decisions on conduct likely to harm consumers, not just individual competitors, and to consider the economic benefits of conduct somewhat as it does with “efficiencies” in the context of Article 81(3) of the EC Treaty or under the EC Merger Regulation. When laying down the factors that it will assess when considering whether to initiate an enforcement proceeding, however, the Guidance reveals greater readiness on the part of the Commission to find a violation by a market-dominating firm than that reflected in a comparable report recently released by the U.S. Department of Justice (“DOJ”) on its policies regarding the same kinds of unilateral conduct (the”Report”). The Commission’s enforcement approach also differs from that of the DOJ in several other respects that will be important for companies seeking to comply with both U.S. and EU legal regimes. Such companies may be disappointed not to find in the Guidance the kinds of clear tests, safe-harbors, and presumptions that the DOJ’s Report helpfully articulated. Conversely, those considering whether to complain to the Commission about dominant firm conduct may now have a clearer idea of the kinds of arguments to make.
