IDEAS home Printed from
   My bibliography  Save this article

Une nouvelle approche à l'égard des abus de monopolisation ?. Quelques commentaires à propos du document de travail de la Commission européenne relatif à l'application de l'article 82 aux abus de monopolisation


  • Alexandre Vandencasteele
  • Denis Waelbroeck


In the context of the modernisation of the EC competition rules, the Commission published in December 2005 a « Discussion Paper » on the application of Article 82 EC to exclusionary abuses, calling for comments. This article considers the merits of the Discussion Paper and the scope for improvement. The principle emphasised in the Discussion Paper that an economic effects based approach should be taken to Article 82 EC is welcomed both for its realism and its greater coherency in relation to the approach taken under Article 81 EC and the merger regulation. The explicit recognition that competition law is there to protect consumers and not competitors and the adoption of an ‘as effective competitor’ test are also positive developments. Nonetheless, often in practice the Discussion Paper fails to translate this desire to reform into appropriate legal tests, often creating unjustified presumptions of dominance and abuse. In this regard, the possibility of presuming dominance on the basis of market shares alone, completely ignoring the dynamic nature of competition, appears particularly problematic. In the case of abuses, the Discussion Paper all too often creates presumptions based on irrelevant factors or conditions that are far too easily fulfilled (for example, the presumption of abuse in case of individualised quantitative rebates, even when these relate to an insignificant proportion of client requirements). Moreover, the defences are too rigid and narrowly defined, preventing economic efficiencies and commercial realities from being sufficiently taken into account. The wholesale transposal of the Article 81(3) EC test to Article 82 EC is particularly regrettable, given that the conditions of indispensibility and absence of elimination of competition appear not to fit in with an analysis of dominant companies’ behaviour. Although no rule is perfect, it must not be forgotten that false positives are just as damaging to competition as false negatives. Failure to take this into account will have the paradoxical effect that competition policy in Europe will chill competition rather than fostering it. Nonetheless, any shortcomings of the Discussion Paper do not detract from its merits. It can only be hoped that later drafts of the Discussion Paper and/or future guidelines build on this already solid base in the spirit of the reform : a fairer, more realistic and economic based approach to Article 82 EC.

Suggested Citation

  • Alexandre Vandencasteele & Denis Waelbroeck, 2006. "Une nouvelle approche à l'égard des abus de monopolisation ?. Quelques commentaires à propos du document de travail de la Commission européenne relatif à l'application de l'article 82 aux abus de mono," Revue internationale de droit économique, De Boeck Université, vol. 0(1), pages 89-123.
  • Handle: RePEc:cai:riddbu:ride_201_0089

    Download full text from publisher

    File URL:
    Download Restriction: free

    File URL:
    Download Restriction: free

    More about this item


    Article 82; dominance; abuse; Discussion Paper; reform;


    Access and download statistics


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:cai:riddbu:ride_201_0089. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Jean-Baptiste de Vathaire). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.