Will Efficiencies Play an Increasingly Important Role in the Assessment of Conduct under Article 102 TFEU?

• Author: Tim Kasten,Jean-François Bellis
• DOI: 10.1177/0003603X1005500409
• Published date: 01 December 2010
• Date: 01 December 2010
• Subject Matter: Article

Will efficiencies play an increasingly

important role in the assessment

of conduct under Article 102 TFEU?

BYJEAN-FRANÇOIS BELLIS*AND TIM KASTEN**

This article addresses the role of efficiencies in abuse of dominance

cases in the European Union. After briefly examining how efficiencies

have previously been taken into account in the decisional practice of

the European Commission and the case law of the European Courts,

this article reviews the two-step approach set out in the recently

adopted Guidance Paper on Abusive Exclusionary Conduct. In

essence, this test provides that the European Commission will first

explain how the allegedly abusive conduct is likely to restrict

competition and thereby harm consumers, following which the

undertaking concerned will be entitled to rebut the finding by

showing that the conduct creates efficiencies that leave consumers

overall better off than before. The article then questions whether the

Guidance Paper is likely to significantly increase the role that

efficiencies will play in future cases, concluding that significant

changes are unlikely.

THE ANTITRUST BULLETIN:Vol. 55, No. 4/Winter 2010 :915

* Professor at the Institute of European Studies (IEE), University of

Brussels (ULB); Partner. Van Bael & Bellis.

** Partner, Van Bael & Bellis.

© 2010 by Federal Legal Publications, Inc.