A Bundeskartellamt/Competition Law Forum Debate on Reform of Article 82: A “Dialectic” on Competing Approaches

Abstract:

This paper seeks to contribute to a more refined debate about the reform of Article 82 EC by describing two different approaches to the application of Article 82: the consumer welfare approach and ordoliberal economic freedom approach. The paper is based on discussions held between representatives of the Competition Law Forum and the Bundeskartellamt. Despite representing different approaches, there was broad agreement on some issues. For example, both sides agreed that a per se approach to Article 82 was inappropriate and endorsed the use of economic evidence and analysis. Both also agreed that in applying Article 82, actual harm did not need to be proven: both are satisfied with evidence of likely harm. The remaining, and fundamental, difference concerns the type of harm that should be prevented. The consumer welfare approach focuses on likely harm to consumers; the economic freedom approach focuses on likely harm to the structure of the market. This paper examines the differences between these approaches, provides examples from case law and discusses some ramifications for enforcement.