The Efficient Abuse: Reflections on the EU, Italian and UK Experience

Abstract

The role of efficiencies in the assessment of abuse cases is far from satisfactory. The distinction between the finding of anticompetitive foreclosure and the subsequent assessment of possible efficiencies is in many cases artificial. Furthermore, the strict conditions identified by the Commission and the EU Courts do not leave much scope for efficiency arguments in abuse cases. The efficiency defence is more a theoretical possibility than a real option. The Italian and UK experiences seem to confirm that efficiencies may play a real role, and are normally analysed, only within an integrated assessment of the effects of the practice. Unilateral conduct that increases efficiency and benefits consumers should be considered, in principle, a legitimate form of competition on the merits and not an anticompetitive practice, even though it may have some negative effects on competitors, just like any other legitimate competitive initiative does. Ultimately, there is no efficient abuse. From this point of view, the Intel and Post Danmark II rulings are worrying. Apparently, they have reinforced the role of efficiencies in abuse cases. In fact, they have restricted the scope for a more economic and effects-based analysis of rebate systems. Reliance on the efficiency defence, as currently structured under EU law, cannot reduce the risk of erroneous condemnations inherent in a broad and form-based interpretation of the concept of abuse.