The European Commission Guidance on Article 82 EC - The Way in Which Institutional Realities Limit the Potential for Reform

Abstract

This paper explores the rise of the ‘effect based approach’ and its manifestation in the recent European Commission Guidance on its Enforcement Priorities in Applying Article 82 Treaty to Abusive Exclusionary Conduct by Dominant Undertakings (the Guidance). The paper focuses on the way in which institutional limitations affect the scope of the Guidance and the nature of the proposed reform. It highlights how these constraints impact on the European Commission’s ability to change and widen the analytical framework of Article 82 EC. In so doing it raises questions as to the European Commission’s mandate to determine its enforcement priorities and to divert from the traditional case law on Article 82 EC. It further highlights how the Commission’s attempt to widen the analytical framework of Article 82 EC, may trigger inconsistencies, in so much as ‘effect based variants’ are being advanced outside the precedent system. The paper also considers how the European Courts’ reactive stance and their reserved response, have affected the reform of Article 82 EC thus far. Subsequently, it draws attention to the emerging gap in analysis between the Commission and European Courts, and its plausible repercussions on the enforcement of Article 82 at national level. All these limitations, it is argued, impact on the viability and effectiveness of the recently published Guidance.