The Article 82 Reform: Increasing the Incentives to Comply?

Abstract

Some general studies on the effects of competition law rules and enforcement show that regulators are least successful in deterring the breach of abuse of dominant position rules. The present article analyses some reasons for this phenomenon. The article examines from companies’ perspective the transparency and the administrability of Article 82 of the EC Treaty after its reform. There are certain limitations on competition law having clear and simple rules: the assessment of embedded economic and legal concepts is often a matter of degree, depending on the circumstances of each case. A certain flexibility of the rules, from the enforcer’s side, is therefore important in order to guarantee the vast objective of consumer welfare. Recognizing these and other constraints, the results show that the Commission has correctly increased the transparency and the administrability of the legal standard in Article 82. Nevertheless, in several important respects, the main factors of the legal standard are left open or undefined after the Article 82 reform. This may discourage businesses from investing in internal compliance, and therefore, risk undermining the very purpose of the Guidance Paper.