Neelie Kroes on the review of Article 82 enforcement

Speech by Neelie Kroes, the European Commissioner responsible for competition policy, on the scope and aims of the review of Article 82 enforcement currently under way within DG Competition.

The speech emphasises that no radical shift in enforcement policy is envisaged, and that any forthcoming guidelines will merely explain theories of abuse for the most frequent types of abusive behaviour. It also confirms that quantitative measures such as market shares and short-term price effects are not seen as reliable indicators of market power or its abuse. It suggests that enforcement will be focused on exclusionary abuses which have "market distorting" effects, but that exploitative abuses will be considered in a second round of the review. There is no reference to any potential reliance on private enforcement, for example through injunctions, although she discussed private actions for damages in another speech yesterday.

The speech also states that "we must find a way to include efficiencies in our analysis", and appears to look outside established grounds of objective justification under Article 82 for something that would be similar to Article 81(3). However, the brief discussion of what this might look like does not establish whether the Commission has found a satisfactory solution to the problem of defining the counterfactual needed to examine whether efficiency benefits are "conduct-specific".

Filed under DG Competition.

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