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Publishers Abstract:
Article 82 EC appears drafted in terms of an absolute prohibition of abuses of market power by dominant undertakings and no escape routes are formally provided. Notwithstanding this, some decisions of the Commission and of the Community judicature have developed an analysis of Article 82 EC based on the notions of objective justification and proportionality which has instilled some flexibility in the application of this provision. In December 2005, the Commission published its much awaited Discussion paper on the Application of Article 82 EC to exclusionary abuses. The paper emphasized that the effects of potentially abusive behavior on competition should be assessed more thoroughly and that practices should not be presumed to be abusive just because of the form that they adopt. It is of paramount importance that the Commission takes heed of their advice and reconsiders the nature and scope of the justifications applicable to ostensible abusive behavior. Without this, an effects-based approach to Article 82 EC will still be a distant reality.
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