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Publishers Abstract:
The Commission has recently announced its intention to reconsider its policy under Article 82 EC in order to make it compatible with mainstream economics and to render Article 82 an instrument to ensure the pursuit of consumer welfare and allocative efficiency. The reform will also seek an equilibrium between simple rules and more complex rules, which balance different effects and interests. This article is an attempt to identify the anachronistic elements of the current application of Article 82 to contractual abuses and explore the problems under Article 82 from an ideological point of view. Then, the discussion focuses on how Article 82 has been applied in practice by the Community courts. This is followed by a summary of the most significant aspects of the modernized approach to these practices under Article 81. In the third part of the article, whether the existing case law has demarcated a borderline between agreements constituting an abuse under Article 82 and agreements which fall within Article 81 is ascertained. It is argued that the assessment under Article 81 can in fact suffice to control situations where such market power amounts to dominance. This leads to a radical conclusion: Article 82 can be freely discarded in this area and Article 81 used alone.
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