OECD peer review of EC competition law and policy

Report (82 pages, PDF) by Michael Wise for the OECD on EC competition law. On Article 82, the report claims that "clarification of policy about exploitative abuse would be welcome", and recommends changes to the law to "make liability depend upon effects that harm competition" (thereby seemingly suggesting that purely exploitative abuse should not exist). The report also claims that "in appropriate cases, assessing the scope for recoupment should be an integral part of such an approach". But it does not appear to explain why (or indeed how) any such changes should be made to EC law.

The OECD report was prepared for a meeting in October 2005, before the European Commission staff paper on exclusionary abuses under Article 82. The Commission's paper confirms its reliance on the case law that evidence of recoupment is not necessary to prove predatory abuse, but suggests (paragraph 123) that evidence that recoupment is impossible may be used as part of a rebuttal of evidence of abuse if combined with evidence that "consumers are not and will not be harmed".

Filed under Article 82, DG Competition.

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