Analysing the Commission's Guidance on Enforcement Priorities in Applying Article 102 TFEU — An Efficiency Defence for Abusive Behaviour of Dominant Undertakings?
| Author | Anna-Lena Baur |
| DOI | 10.1177/1023263X1201900307 |
| Published date | 01 September 2012 |
| Date | 01 September 2012 |
| Subject Matter | Article |
19 MJ 3 (2012) 421
ANALYSING THE COMMISSION’S GUIDANCE
ON ENFORCEMENT PRIORITIES IN APPLYING
ARTICLE 102 TFEU – AN EFFICIENCY
DEFENCE FOR ABUSIVE BEHAVIOUR
OF DOMINANT UNDERTAKINGS?
A-L B*
ABSTRACT
Considering that in an EU competition law context, dominant undertakings have
traditionally been placed under a more stringent regime than their non-dominant
counterparts, th e introduction of an e ciency d efence in the latest Commission’s Guidance
on the application of Article102 TFEU can be evaluated as a true novelty. Given the succe ss
of the Article101-regime it is not surprising that the requirements for using the e ciency
defence are very similar to the preconditions asked for under Article101(3) TFEU. While
it should be welcomed that e ciencies are acknowledged in an Article102-context, it
is questionable whether a defence that is modelled so closely along the lines of a regime
applicable to non-dominant undertakings will be equally e ective for dominant market
participants. e following article gives an exhaustive overvie w of the development and
possible employment of the newly introduced e ciency defence for dominant under takings.
While familiarizing the reader with the Guidance in general and the requirements of
the e ciency defence in particul ar, the main focus of this article will be on whethe r the
e ciency defence in its cur rent form can be a useful tool for dominant undertakings in
practice.
Keywords: Art icles101 & 102 TFEU; Commission’s Guidance; dominant underta kings;
e ciency defence; EU competition law
* Anna-Lena Bau r is currently employed at Konstanz Uni versity in Germany and holds a LL B/LLM in
European Law. e author wou ld like to especial ly thank Professor Phedon Nicol aides for his support
and valuable i nput.
Anna-Lena Baur
422 19 MJ 3 (2012)
§1. IN T RO DUCT I ON
To give dominant undertakings t he possibility to justif y their anti-competitive behav iour
seemed – at least at rst – to be unforeseen by t he dra ers of the Europe an Treaties.
Contrary to t he procedure under Article101 TFEU,1 where agreements of undertakings
can be excluded from the applic ation of the article i f all requirements of pa ragraph 3
are met, no Article 102(3) TFEU exists. Nevertheless, despite the abs ence of a general
exclusion clause in the Treaty, economic practice has shown that certa in forms of
seemingly anti-competitive behaviour are capable of creating signi cant e ciencies. In
the past, the Europea n Commission has repeatedly been c riticized for not acknowledging
these e ciencies by declaring cer tain forms of behaviour of domina nt undertak ings
abusive per se.
When reviewi ng the applicability of Article101 and Art icle102 TFEU, the European
Commission nally reacted. In December 2009 t he latest Guidance on the application of
Article102 TFEU was published and defence mechan isms for anti-competitive behaviour
of dominant undertakings were introduced. Trying to implement a more e ects-based
and economic approach to the application of Ar ticle102, the Commission announced that
it might be will ing consider two claims of e ciencies: t he rst being bas ed on necessity
and the second on e ciencies. In order to be able to judge wh ich form of behaviour may
be eligible for justi cat ion under the e ciency de fence, the Comm ission introduced four
preconditions which a dominant undert aking has to f ul l in order to bene t from the
e ciency defence. It is striking but not surprising that these four requirements of the
Guidance very closely mi rror the criteria required under Art icle101(3) TFEU.2
In a European Union law setti ng, the leeway for dominant undertaki ngs to compete
strongly on the market has tr aditionally been li mited. Bearing a sp ecial responsibility
towards other market par ticipants, they a re prohibited from taking c ertain forms of
action that would be legal i f implemented by their non-dominant competitors. e
e c iency defence as introduced in the C ommission’s Guidance seems to open up
attractive new ways for dominant undertakings to keep up with their competitors, and
for implementing strategies they have so fa r not been allowed to employ. is expect ation,
however, will only materialize i f the e ciency defence is really applicable in practice.
e purpos e of the article at hand is to cr itically re ect on the e ciency defence and
its prerequisites in order to explore how much potential for practical appl icability the new
tool bears. e underlying idea is to provide the reader wit h a starti ng point for an own
1 Treaty on the Function ing of the European Union (Conso lidated Version), [2008] OJ C 115/47.
2 Not only is the content of the c onditions of the e cienc y defence very similar t o Article101(3) TFEU,
but the Commiss ion itself refers in it s latest Guidanc e on Article 102 TFEU to the interpretative
Guidelines for A rticle101 TFEU. Compare: Commun ication from the Commi ssion – Guidance on the
Commission’s enforcement priorities in applying Article82 of the EC Treaty to abusive exclusionary
conduct by dominant undertakings, [2009] OJ C 45/7, para. 30 f n. 3. is source will in the following
be referred to as ‘Comm ission Guidance Paper’.
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