Seminar 3 – Abuse of Dominance: impact of the new policy (22 October 2013)

Now we turn to a set of post 2009 judgments, which allow us to see how far the Commission’s new approach has an impact. Please read both the judgment and the Opinion of the Advocate General. Obviously the first case was originally decided before the Guidance Paper was issued, and technically the next two should not be affected by the paper, nevertheless it is worth exploring where the court is going. The paper by Ibanez Colomo is helpful in suggesting an alternative reason for the developments in the Court’s case law.

Case C-202/07P France Télécom SA v Commission [2009] ECR I-2369

Case C-52/09 Telia Sonera [2011] ECR-527

Case C-209/10 Post Danmark Judgment of 27 March 2012

Ibanez Colomo ‘The Law on Abuses of Dominance and the System of Judicial Remedies’ LSE Law, Society and Economy Working Papers 13/2013

US Department of Justice Competition and Monopoly: Single Firm Conduct Under Section 2 of the Sherman Act (2008) ch.3 (available at: www.usdoj.gov/atr/public/reports/236681.htm)

 Further Reading

Marquis and Rousseva ‘Hell Freezes Over: A Climate Chance for Assessing Exclusionary Conduct Under Article 102 TFEU’ (2012) Journal of European Competition Law and Practice 1

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22 comments on “Seminar 3 – Abuse of Dominance: impact of the new policy (22 October 2013)

  1. Marita Szreder says:

    What strikes me about the US Department of Justice’s document on single firm conduct under section 2 of the Sherman Act is the level of openness of the debate. Arguably the EAGCP report we read last week was equally open, but that document was prepared only by an advisory body, not an official authority. Perhaps if the Commission was to prepare a similar document, it would find it easier to persuade the Court of the need to change the approach to article 102 enforcement. Instead, it produced Guidance which if anything can only be taken as a source of new uncertainty and confusion.

    In the cases we are considering this week, however, we can see a court which is unwilling to engage with the issue. CJEU either repeated phrases from previous case-law like well rehearsed incantations devoid of real meaning or, in France Telecom, found most grounds of appeal inadmissible (the same Court was prepared on numerous previous occasions to consider issues which it found interesting even if they looked inadmissible on the face of it). In fact, as noted by Colomo, the Court has gone so far as to refuse to address the internal inconsistencies in the case law when it was expressly invited to do so (Telia Sonera).

    An issue in the background of the debate of whether the CJEU should move towards a ‘more economic’ approach to article 102 is the question of the relationship between the CJEU and the Commission. As Colomo pointed out, the Court has so far been rather deferential to the approach adapted by the Commission. Yet, it is uncertain if this will continue to be the case if the Commission actually decides to change its approach (it seems to me that the arguments put forward by the Commission in cases under consideration show a level of inconsistency in its approach). I think that it would be interesting to consider the apparent power struggle between the Commission and the CJEU in terms of institutional economics.

    Although I found the article by Colomo very interesting, I cannot help feeling a bit cautious about the conclusions he reached. As his graphs reveal, he based his analysis on a selection of cases, but he failed to explain why he chose those cases and apparently ignored others. To my mind, preliminary references provide a better opportunity for the Court to lie down guiding principles on anti-competitive practices under article 102, but that presupposes that the Court is willing to take a leading role in policy creation. Unfortunately, I am not sure if this is indeed the case. Annulment cases, on the other hand, should allow the Court to address the issues that arise in a more focused manner, so could at least potentially offer an equally valuable source of guidance on the wider principles at stake. However, the unwillingness (or incapacity?) of the Court to engage with the issue, leaves us with the coexistence of multiple substantive standards – as illustrated by the difficulty faced by AG Mengozzi with rationalising previous case law in Post Danmark.

    • giorgiomonti says:

      I think the case selection is comprehensive in teh Colomo paper. It is at any event a representative sample of the leading Art 101 cases.
      It would be interesting to hear how you think institutional economics could play a role in looking at Commission/ECJ relations.

  2. Itsiq Benizri says:

    I would just underline some elements drawn from the readings of this week.

    First, in France Telecom, there is this reproach made by the applicant and which consists in saying that the Court did not check if measurements were proportioned and reasonable whereas that would have been necessary to prove the recoupment of the losses. The Commission had then opposed that it is indeed necessary in the US, but that is not it in the EU, where the dominant position is perceived as a criterion indicating that the recoupment of the losses is possible. The answer of the Court is interesting. The Court indeed judged that the checking was not necessary, and that it could be supposed. This element is interesting, because it suggests the system of presumptions which supports the decisions of the Court. However, it is precisely with the logic of presumptions that the economic and pragmatic approach should be opposed. However, there is a contradiction with the judgment Post Denmark in which the Court judges that it is necessary to decide by appreciating “all circumstances” of the case. Thus there is a certain tension, in the model of the Court, between a theoretical approach and a concrete approach, and it is difficult to say which one of these should be considered as the principal one.

    Second, I suggested last week that the main difference between the classical approach of the Court and the new economic approach was the point of view. In the first case, one adopts a structural point of view and, in the second case, a personal point of view, the consumer one. However, it is true that in France Telecom, the Court remembered that article 82 aims to control behaviors that affect the market structure. But France Telecom, TeliaSonera and post Denmark have a common point: in these three judgments, the Court explains that article 82 aims to control practices which carry an immediate damage to the consumers, but also practices which damage them by reaching the structure. Therefore, first, the Court initially considered the attack to the structure. Second, it presented this attack in opposition to the immediate attack to the consumers. Consequently, attack to the structure would be presented like indirect. I thus wonder if one cannot consider that the Court considers indirect attack to the system as the purpose of art. 82 and concludes, by an a fortiori reasoning, that since art. 82 aims to avoid indirect attacks, it aims also certainly to avoid direct attacks. And, if this position can be confirmed, then one can wonder if the difference between the classical approach and the new approach is not a question from point of view, but a question of starting point. Indeed, the new approach would not consist in taking indirect attack to the structure as a principle to pass to the direct attack to the consumer, but to directly being interested in the direct attack to consumers. Thus this approach would be more direct. But still, even if this position is pure imagination (which could totaly be possible, considering the fact that I am just curious about it and asking questions), these judgments show that the Court is not interested only by the structure, but also by the consumers. Moreover, one finds the same idea in the American report.

    Third, the article of Colomo is also interesting. First, because he explains why there is not one but several standards used by the Court of justice. Second, because he also explains why this multitude of different standards is a source of legal uncertainty. It is interesting, because I had had the same reaction last week with the new approach. I had then suggested that this approach implied a casuistry which could perhaps put in a difficult situation legal certainty. Here, Colomo proposes another explanation: it is not the approach which is source of legal uncertainty, it is to have several different criteria of evaluation within the same approach.Finaly, Colomo is rather critical with respect to this multitude of standards, whereas the American report concludes that it does not seem possible to adopt a single standard…

    • giorgiomonti says:

      I wonder if you direct/indirect approach might be answered by the first point you made about presumptions.
      Under a direct approach one wishes to be convinced that harming the structure leads to harming the consumer
      Under an indirect approach as characterised above, one presumes taht damaging the structure causes harm to consumers. The ‘thereby’ which the ECJ uses might be evidence tending to confirm this.

  3. Samantha says:

    My instinct is always that “considering all the circumstances” and case-by-case analysis is the best and fairest approach to, or test for, legal questions. Therefore, in a sense I appreciated the trend I saw developing in the cases we read. However, I also found myself deeply considering the administerabilty costs of these more holistic judicial opinions. I found the chapter from the US DOJ interesting in this regard as well because it discussed the various benefits and drawbacks of the potential approaches courts could take. And, I agree with the general opinion that when possible, different conduct merits different approaches and that to the extent possible, different tests should be tailored to conduct to perhaps allow for consideration of elements beyond a per se rule but also confining the potentially expansive considerations of an all things considered approach. I am always compelled by the seeming increased “fairness” of an all things considered approach, but vague language like “whether the practices tend to remove or restrict the buyer’s freedom” (Post Denmark, para 26) seems preposterously unworkable.
    On another note, I am not sure I agree with the court’s delineation of relevant or irrelevant factors in TeliaSonera, especially because the court agrees that “all of the circumstances of each individual case should be taken into consideration” (para 113). For example, the eighth issue regarding new technology. I agree that the competition rules “cannot depend on whether the market concerned has already reached a certain level of maturity” before being applicable (para 108) but it does not seem entirely irrelevant whether the market at issue concerns new technology. I think that perhaps the rules should be slightly different for a developing industry if the goal is to promote consumer welfare by promoting and encouraging development and innovation. So, while the rules should not not apply, I do not think that the factor should be not relevant. Likewise, the sixth factor, supply to new customers versus current customer, does not seem irrelevant to me either. A discount to a new customer may be a totally rational strategy to lock in the customer. Of course it may also be indicative of problematic predatory pricing but I think that it could speak to the rationality of the strategy and potential short term losses and therefore is not not relevant.

    • giorgiomonti says:

      On the second paragraph:
      supply to new customers: note that the dvocate general also thinks this can be more nuanced: if you are supplying an existing customer they may have sunk certain costs in the previosu contracts so that stpping a supplyto them might be more problematic than refusing to sell to a new entrant. On teh otehr side, as you suggest when you are offering discounts, discounts to new customers seem to be more justifiable.

      Your point about new technoloies is also well taken, in fact the Telia Sonera case shoudl be seen in the context of an attempt to create more competition in telecommunications. Thsi is (in part) why in the US the supreme court has held that price squeeze is not an abuse of dominance (the relevant judgment Pacific Bell v linkline)

  4. Delphine Defossez says:

    Although, the Guidance paper was not yet issued, we can notice in the judgment of France Télécom that the Court of First Instance and then in the appeal judgment, the CJEU are ‘protecting’ the Commission, by agreeing with all its arguments, in a slightly different way that it was used to do. Even though the new approach raises the burden of proof on the side of the Commission, the Court still takes a lenient approach by looking at the arguments of the Commission with a mixed version of the old and new approach. Some elements of the new approach can be found in the judgment, such as the method of calculation, but there are still other elements coming directly from the old approach. In the judgment it is nowhere to be found that the Court looked, as extensively as it was used to do, at the relevant market and if there is a dominant position. For me it looks like the Commission started with the fact that there is an abuse and consumer may be harmed by it. Then found evidence for it, therefore taking the economical view of article 102TFEU rather than the old one.
    One evidence of this is paragraph 23 of the judgment, where the Court referred to Akzo case and held that ‘[…] the Commission was not required to provide such evidence. Where the prices applied by an undertaking in a dominant position are lower only than its full costs, the Commission, although required to adduce evidence of an additional factor, that is, of the existence of a plan to ‘pre-empt’ the market, is not also required to establish the possibility of recouping the losses.’ Additionally, the Court of First Instance referred in its judgment to the fact that ‘prices below average variable costs must always be considered abusive’, which is again part of the new approach rather than the old one.
    Nevertheless, in France Télécom, the CFI still applied the test of substitutability which was first developed in United Brands. The CFI found that high and low speed internet connection were distinct as there was insufficient substitutability between them.
    In Post Danmark A/S, the Court held that price-cutting will be considered as an abuse if it can be regarded as predatory in the meaning of AKZO. Therefore, we may assume that the new economic ideas that were introduced in AKZO, would form part of the new applicable test. Consequently, the new approach in which is partly encompassed in the Guidance paper, may become the approach that the Court will follow in the future. Nevertheless, one should not forget that there is a lack of consistency in the judgments of the CJEU concerning article 102TFEU. Consequently, we might have to wait and see which direction the Court will decide to take.
    As stated in the paper by Pablo Ibanez Colomo; ‘Cases like Microsoft and Compagnie Maritime Belge show that precedents are not reliable predictors of the outcome of future rulings, in the sense that firms cannot exclude that lower (or simply different) substantive standards will be subsequently endorsed by the Commission (and then upheld by EU courts).’ If we push this reasoning further, that means that it can be good for the Commission guidance paper, as it seems that, with regard to article 102TFEU, there is no real consistency in the different ruling of the Court. Therefore, if the Commission arrives to convince the Court that the new approach is the best, we may witness (again) a change in the approach taken by the Court.

    In my opinion, the new approach which takes into consideration more economic factors, seems more complicated to use than the old approach. The new approach may lead to more accurate results but the old approach could be relied upon by people having never had any economic courses.
    8 Referring inter alia to Case C 62/86 AKZO v Commission [1991] ECR I 3359 and Case C-333/94 P Tetra Pak v Commission [1996] ECR I 5951, in paragraph 130 of the judgment under appeal, the Court of First Instance noted that, ‘first, prices below average variable costs give grounds for assuming that a pricing practice is eliminatory and that, if the prices are below average total costs but above average variable costs, those prices must be regarded as abusive if they are determined as part of a plan for eliminating a competitor’.

    • giorgiomonti says:

      I lost you a bit with what you though was different about France Telecom

      I enjoyed the point where you suggest that if the approach is truly inconsistent then the Guidance paper can be a strategy to point to a resolution of that inconsistency. However, I am not so sure that there are as many inconsistencies as people say there are. it will be good to pick these out.

  5. Tiago Andreotti says:

    The three cases we had to read seem to put forward a fair balanced approach to determining an abuse of a dominant position, always based on economic rationale.

    In France Telecom the exclusion of recoupment of losses when prices charged are below a certain level of costs as a precondition to establish that the pricing policy is abusive creates a standard that allows for the control of a firm’s behavior and at the same time allows the firm to defend itself if it has reasons that are justifiable to engage in such conduct. Imposing a need to prove that recoupment of losses is needed to establish the abuse of a dominant position would create an extremely high burden for the Commission and would in fact prohibit not the abuse of a dominant position behavior, but the success of the abuse. An analogy that came to mind was punishing a criminal for murder only when the murder was successful, and letting him free when the shots fired missed the target (attempted murder may entail a lower sentence, but is punishable nonetheless). What is trying to be avoided is not profit from the abuse of a dominant position, but the abuse itself, which can have harmful economic effects even though the firm may not be able to recoup its losses in the future. In any event, certain behaviors are by their nature disruptive of competition, and absent a credible justification for them they should not be allowed.

    This logic seems to be applicable in the Post Danmark case. Even though the operation of the unaddressed mail sector business by Post Danmark was being priced below its average cost, for Post Danmark it made economic sense to engage in such activity because pricing was above average incremental costs related to the activity. Even though there is not much detail regarding the operational aspects of Post Danmark in the judgment, it seems that the company was already losing money providing unaddressed mail services, and engaging in business with Coop at a below than average total cost made sense because pricing was above incremental cost, diminishing the outflow of money that Post Danmark was experiencing. As there is economic logic for this behavior the Court required something else to show that an abuse of a dominant position was taking place, which would be the consideration of “whether [the] pricing policy, without objective justification, produces an actual or likely exclusionary effect, to the detriment of competition and, thereby, of consumers’ interests”.

    The TeliaSonera case involves the abusive character of a margin squeeze. The economic logic was also similar – if there is a negative margin between wholesale and retail being practiced by the dominant undertaking, the exclusionary effect is probable since the competitors would be obliged to sell at a loss, while if the margin is positive a restraint of trade should also be demonstrated. In this second case, even if there was an exclusionary effect, the firm engaging in the practice can demonstrate that there is an economic justification for such practice, which would then only be punishable if it “went beyond what is necessary in order to attain [advantages for the market and consumers]”. I’m not sure if I agree with this last part as an important competition policy measure as it would to some extent protect inefficient businesses, departing from the economic rationale that otherwise is being deployed in these cases.

    • giorgiomonti says:

      Your Telecom comments are interesting – but then query if you may need a doctrine of attempted abse – this exists in teh US under section2 of the sherman act
      I am not sure about the profitability of unadressed mail in POst DK.
      Lost you on Telia sonera – the passage you cite is about the so-called efficiency defence.

  6. Theodosia Stavroulaki says:

    After reviewing the reading material I decided to focus on two statements included in the Competition and Monopoly report of the US Department of Justice which I consider as particularly relevant with the difficulties entailed in an analysis under article 102 TFEU. According to the first statement: “Competitive and exclusionary conduct can look alike-indeed, the same conduct can have both beneficial and exclusionary effects making hard to distinguish conduct that should be deemed unlawful from conduct that should not”. According to the second statement “A proper allocation of the burdens can help “limit the cases that proceed to discovery and trial” and “structure the proceedings in the rest, leading courts to focus on the most important issues”. Taking into account the above it would be interesting to examine whether the Commission’s and the European Courts’ approach regarding article 102 TFEU has succeeded in drawing a clear line between conduct which is procompetitive and conduct which is anticompetitive and thus illegal. I consider that in the AKZO case, the European Court of Justice to a certain extent managed to provide a clear framework regarding the predatory pricing and the criteria under which such a conduct is anticompetitive. However, after reviewing the French Telecom case as well as the Post Danmark case I did not have the same impression. I take the view that the Commission and the European Courts in both cases based their analysis in vague and general terms such as the “the special responsibility of the dominant firm” and as a result their justification seems unconvincing. For example, in paragraph 46 of the French telecom decision it is mentioned that article 102 TFEU imposes specific obligations on undertakings in a dominant position and that although the dominant position of an undertaking cannot deprive it of the right to protect its own commercial interests if they are attacked, it is not possible to countenance such behavior if its actual purpose is to strengthen that dominant position and abuse it. On the basis of this argument it is stated in paragraph 47 that the Court of First Instance found that WIN cannot rely on any absolute right to align its prices on those of its competitors in order to justify its conduct where that conduct constitutes an abuse of a dominant position. Taking into account the above said approach I wonder: why a dominant firm should not have the right to align its prices on those of its competitors? Isn’t it part of a competitive process? In this context I read with great interest the opinion of the Advocate General on the same issue who supports that there is a lack of reasoning on the part of the Court of First Instance and that a more detailed analysis on the defence of alignment is necessary. A similar vague and general interpretation of the “the special responsibility of the dominant firm” concept is undertaken in the Post Danmark case where the Court concluded that a policy by which an undertaking charges one of the competitor’s customers prices lower than the average total costs but higher than the average incremental costs might be found abusive if such a pricing policy produces an actual or likely exclusionary effect to the detriment of competition and thereby of consumer’s interests. Again, it seems that the interpretation of the “special responsibility” concept is so vague that a dominant undertaking might decide not to charge lower prices to competitors’ customers in order to expand its business activity because such a strategy might be found illegal under article 102 TFEU. However, again I wonder: why a dominant firm should not have the right to conduct such a pricing policy? In my opinion this vague interpretation of the “special responsibility of a dominant firm” concept proves the Commission’s and the European Courts’ difficulties in drawing the line between competition on the merits and abusive forms. Such difficulties are reflected not only on the case law concerning the application of article 102 TFEU but also on the Commission’s guidance paper. However, if the Commission does not manage to provide a clear guidance on this issue, not only it will be hard for the dominant undertakings to distinguish conducts that may be deemed unlawful from conducts that are considered lawful but also it will be more difficult for the Commission to allocate its resources in an efficient way and focus on the most anticompetitive conducts.

    • giorgiomonti says:

      Agree with your point about price alignment – however whatif the new entrant is more efficient than the dominant irm, then surely the dominant firm has to just suffer the losses, it cannot cut prices below AVC. what do you say?
      while teh spaecial responsibility phrase is vague, recall taht it actually means nothing: it just says: ifyou are dominant you cannot abuse your position; however if you are not dominant an act like price below AVC would not be prohibited, because only dominant firms have that prohibition.

  7. Céline Estas says:

    After the reading of the three cases, I had a feeling of uncertainty. Indeed, I felt that Colomo was totally right in asserting that legal uncertainty exists in the case law of the ECJ. The case that attracted the most my attention is TeliaSonera. In that case, the margin squeeze was compared to a refusal to supply, but it was distinguished from it as the refusal to supply is a different form of abuse. However, the AG pointed out that the two behaviours imply the same concerns (§16). In his point of view, the TeliaSonera case constituted a “form of refusal to supply”. The distinction between the two forms made by the ECJ is important because it leads to a distinction in the level of proof required for the anti-competitive effects. Indeed, one may find similar practices such as margin squeeze and refusal to supply that will not be judged under the same level of proof: the ECJ requires the demonstration of the indispensability of the product in the refusal to supply but not in the margin squeeze. Moreover, as pointed out by Colomo, sometimes potential effects are required for certain practices whereas concrete effects are required for the same form of abuse (pp. 7-8). In my opinion, the form of the abuse and the different criteria that can be applied in the same case lead to legal uncertainty.

    The second element that attracted my attention is the attention paid by the Court to the consumer welfare. Indeed, the ECJ interpreted the Article 102 TFEU as referring to practices having direct and indirect effect on the consumer welfare. In that sense, we may consider that the ECJ follows the Commission’s view of holding the consumer welfare as an aim for its policy. We may also notice that the consumer welfare is mentioned as an aim of US Competition policy (p.38).

    Finally, the Colomo’s assertion on the value of ECJ decisions on annulment action compared to preliminary rulings surprised me. As it has also been mentioned by Marita, I assumed that the preliminary rulings were better occasions for the Court to define or redefine great principles than in specific cases where the Court should be more focused on the particular circumstances of the case. It may be true that a departure from precedents is more frequent in annulment cases, but I am not convinced by this analysis because a decision on preliminary ruling is based on a previous interpretation, similarly as an annulment decision, which relates to the Commission’s “interpretation”. I would have liked a more detailed example of this phenomenon.

  8. Sylvi says:

    The cases provided an interesting follow up to last week’s discussion of Akzo. TeliaSonera and Post Danmark demonstrated the variation in standards that inform the Court’s abuse of dominance analysis while simultaneously remaining consistent with corollary of the Akzo ruling – Telia Sonera placing an emphasis on objective considerations (for example in its rejection of TeliaSonera’s claim that “they should remain free to fix their terms of trade, unless those terms are so disadvantageous for those entering into contracts with them that those terms may be regarded…as entailing a refusal to supply”(p. 54)), and Post Danmark placing an emphasis, as noted by Colomo, on “concrete evidence of the foreclosure of equally efficient competitors” (Colomo 25) as a means of avoiding inconsistencies in the caselaw. It was also interesting to see that the Court in Post Danmark referred to the Commission’s “cumulative conditions” I had criticized last week (p. 42). Both cases seemed to me to represent a strong priority in favor of case-by-case analysis rather than a per se rule. In this sense, I disagree with Colomo’s contention that the Court took a “formalistic approach to the matter” of margin squeezes in TeliaSonera – the court’s rejection of certain factors in favor of others is not necessarily strictly “formalistic.”

    Ultimately, the cases highlighted, as Colomo notes, the lack of consistency within the ECJ as regards TFEU Article 102. However, in a similar vein, the cases, and particularly the Colomo article, drew my attention to the reality that “the application of Article 102 TFEU depends on the effects of a practice on competition,” (Colomo 8) and that variation across practices obviously has an effect on the applicable standard.

    • giorgiomonti says:

      Nice comment on whether consistency (or lack of) has more to do with factors that justify tehse differences.
      In telia – what would happen if the upstream product is not essential and rather than committing price squeeze the dominant firm simply refused to sell it?

  9. Mariajo says:

    If I may, I’d just like to add a little (and quite late…) comment on the evolution of the AKZO test. As we discussed last week AKZO set up a quite simple formula to determine abusive pricing strategies:

    1) price ATC, but AIC, but < ATC

    when "that pricing policy, without objective justification, produces an actual or likely exclusionary effect, to the detriment of competition and, thereby, of consumers' interests".

    In my opinion, this is a piece of evidence that the 'new economic approach' towards Article 102 TFEU is starting to bite the Court. At least in the category of predatory pricing the Court is starting to move away from a formally 'legal' (intent based) test to an effects based test as the Commission wants it.

  10. Mariajo says:

    Unfortunately half of my comment was deleted because I was using “>” “<" and "=" and "+" too much (damn you, hidden computer language!).

    I will try again:

    If I may, I’d just like to add a little (and quite late…) comment on the evolution of the AKZO test. As we discussed last week AKZO set up a quite simple formula to determine abusive pricing strategies:

    1) price below AVC means abuse

    2) price above AVC, but below AVT plus "intent" to exclude a competitor means abuse.

    In France Télécom the Court strictly followed the AKZO test. It was satisfied by the evidence for abusive pricing provided by the Commission because, in addition to prices below ATC, France Télécom had "plans of predation" as shown by internal documents (even the Commission argues that the "intent" prong of the AKZO test was necessarily subjective).

    In Post Danmark the Court seems to move away from this approach. Albeit it still applies AKZO orthodoxically in its analysis in paragraphs 26 and 27, it concludes that there is an abuse if prices are above AIC but below ATC when

    "that pricing policy, without objective justification, produces an actual or likely exclusionary effect, to the detriment of competition and, thereby, of consumers' interests" (at 44).

    In my opinion, this is a piece of evidence that the 'new economic approach' towards Article 102 TFEU is starting to bite the Court. At least in the category of predatory pricing the Court is starting to move away from a formally 'legal' (intent based) test to an effects based test as the Commission wants it.

    • giorgiomonti says:

      Perhaps the point might be otherwise explained: AKZO is respected (intent reigns there) but when intent is not found there is an alternative approach based on effects. But having both standards might be awkward.

  11. Haukur says:

    The Colomo article was a bit boring, perhaps it was just the style of drafting. I guess the central point he makes is right regarding the effects different procedures can have on the outcome of cases. Preliminary rulings give opportunity for more macro interpretive approach by the ECJ, leaving responsibility for the details with the relevant national court. On the other hand when the ECJ is itself responsible for the details he tends to limit itself to the specifics of the particular context. I think this is a plausible thesis.

    The Marquis and Rousseva article was much better. They show in my opinion convincingly how the changed approach to Article 102 is being achieved through the collaboration of the Commission and the Courts. It is perhaps a bit unorthodox that the Commission takes the initiative by issuing a guidance paper that is not in line with the case law. By doing so the Commission however signaled that a reform was needed and, if the analysis of the article is right, the ECJ seems to agree. Thus the case law becomes aligned to the reformed approach. I do not find this way of legal change problematic. Article 102 simply states broadly an objective. The institutions subsequently align their enforcement strategies towards this objective, taking into account the advancing understanding of how that can be achieved.

    • giorgiomonti says:

      is the tehsis matched up by the case law? akzo seems to setout, in lapidary form, a test for predation, andthis is an annulment case.
      I take it you agree with the Marquis/Rousseva paper? why?

      • Haukur says:

        I don’t know if the thesis, on the average of all ECJ cases, is correct. Certainly it must be possible to find instances that go both ways as the AKZO shows and probably many other. However in the abstract the question for these different categories of cases can easily be perceived differently. If not consciously by the Judges, then perhaps subconsciously because the difference is subtle. The psychology of being asked; what is the law on this subject? is different from the psychology of being asked; whether the wrongdoing or the acquittal of this or that party should be upheld? I think it is a plausible thesis that in the former one would be inclined for resolving to a macro approach, while in the later towards a micro approach. This is however obviously not the only factor that determines how judges draft their judgements. I would suspect that political necessity and impossibility are far more important, then the particular procedural track through which the case happens to end up in the court.

        The Marquis/Rousseva paper identifies the subtle politics of change that seem to be occurring with regards to Article 102. The court anchors its approach in the relatively sophisticated AKZO case, while allowing the new policy objectives of the Commission to enter the case law. This is not a revolutionary process where the entire body of past judgements is thrown out, it is a evolutionary process where the sensible parts of the existing case law form the backbone of subtle changes in the approach to specific issues. This analysis I agreed with in the paper.

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