The book's aim

This book identifies some of the uncertainties surrounding the application of Article 82 (formerly Article 86) of the EC Treaty. These are: (i) What is the underlying purpose of Article 82? (ii) Is it necessary to demonstrate actual or likely anticompetitive effects in the marketplace when applying Article 82 and what effects are relevant? (iii) How can dominant undertakings defend themselves against a finding of abuse? These uncertainties led the European Commission (the ‘Commission’) to initiate a review of Article 82. At the eighth annual conference of the European University Institute in Fiesole in June 2003, former Competition Commissioner Monti announced that the Commission had started an internal review of its policy on abuse of a dominant position. Director General Lowe confirmed the initiation of the review a couple of months later. It became clear early on in the review period that the Commission was keen to emphasise that the aim of Article 82 is consumer welfare.

As will be demonstrated, the Commission and Community Courts, the European Court of Justice (the ‘ECJ’) and the European Court of First Instance (the ‘CFI’) have interpreted case law in the light of many objectives. For example, Article 82 has been used as a tool in the Commission's broader effort to liberalise markets in sectors which were previously monopolies, such as the postal sector. Given that objectives other than consumer welfare are relevant within Article 82, the book considers whether the sole focus on consumer welfare is legitimate.