Monday, May 12, 2008
Posted by D. Daniel Sokol
Damien Gerard of the University of Louvain explains The Commission on Velvet: Why it will probably not issue Article 82 guidelines any time soon.
ABSTRACT: The publication of the Discussion Paper in December 2005 sparked tremendous interest in the EC antitrust community and, indeed, much beyond. The Commission received no less than 107 contributions from all over the world in the framework of the public consultation and one cannot begin to estimate the number of seminars, colloquia, or symposia devoted to the enforcement of Article 82 EC in the months preceding and following the publication of the Discussion Paper.
However, since the public hearing on June 14, 2006, silence has prevailed on the side of the Commission. Officially, it is “currently reflecting carefully on the comments received from the public and on the issues at stake, to determine the best way to move forward with the review.” That careful reflection has been ongoing for almost two years and no announcement has been made as to the outcome of the review process.
Is the Commission likely to issue some sort of “Article 82 enforcement guidelines” any time soon? The fact is that, in spite of the silence of the Commission, a lot has happened on the Article 82 front since June 2006. In particular, the EC Courts have released five important judgments (Wanadoo, British Airways, Grüne Punkt, Microsoft, and Deutsche Telekom) since then, dealing with most of the issues addressed in the Discussion Paper (and more). In all of these cases, the EC Courts have sided with the Commission.
More importantly, the EC Courts have at times ratified the approach advocated in the Discussion Paper—which contained some sections clearly drafted with pending cases in mind—and have in other places resorted to loose language that goes beyond the positions advocated in the Discussion Paper.
This paper discusses these examples in detail and weighs the pros and cons of releasing guidelines.