Article on the EU Commission's guidance on exclusionary abuse of dominance
Martin Andreas Gravengaard, attorney with Plesner and Niels Kjærsgaard, attorney have written the article "The EU Commission guidance on exclusionary abuse of dominance - and its consequences in practice". The article is published in the European Competition Law Review, Volume 31, No. 7, 2010.
On 3 December 2008 the EU Commission published its "Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings".
The article describes and discusses - from a practitioner's point of view - the application and consequences of the guidance with special focus on assessing price based exclusionary abuse of dominance in the form of "conditional rebates" and "bundle rebates".
The Guidance Paper marks a significant change on the part of the EU Commission from a formalistic approach to a more effects-based and economics based approach towards exclusionary abuse of dominance. It is expected to have a major impact on the EU Commission's enforcement practice towards dominant undertakings and it is expected to a considerable extent to influence the national competition authorities' and the national courts' application of TEUF Article 102 (ex. 82) on abuse of dominance and the parallel provision in Section 11 of the Danish Competition Act.
The article was first published by Sweet & Maxwell, "The EU Commission guidance on exclusionary abuse of dominance - and its consequences in practice", ECLR, Volume 31, No 7, 2010 and is reproduced with the publisher's consent.