6 - Guidelines

Summary

Introduction

This chapter questions whether the Guidance Paper clarifies the doubts in Article 82 highlighted in chapter 1 : (i) What is the underlying purpose of Article 82? (ii) Is it necessary to demonstrate actual or likely anticompetitive effects in the market when applying Article 82 and what effects are relevant? and (iii) How can dominant undertakings defend themselves against a finding of abuse? In general, it can hardly be said to be an aim of priority guidelines to clarify the uncertainties surrounding the substance of the law, but instead to establish what the Commission's priorities are. However, the Guidance Paper does go into the substance of the law, despite being labelled ‘enforcement priorities’, thus part of this chapter considers the Commission interpretation of the law in the Guidance Paper.

Chapter 3 attempted to examine what the underlying purpose of Article 82 is by discussing the objectives of Article 82. It found that Article 82 pursues a number of objectives, some of which may conflict. The overarching objective of Article 82 is distortion of competition, which is important in a balancing act between conflicting objectives. The chapter concluded that the Commission appears to give disproportionate attention to consumer welfare given that the provision also pursues other objectives. Chapter 4 found that economic freedom and consumer welfare may conflict. Protecting freedom of competition does not always lead to consumer welfare. Jurisprudence takes a long-term view with a focus on rivalry.