Eternal Sunshine on a Spotless Policy? Exclusive Dealing Under Article 82 EC

"This article first discusses the past and prevailing economic insights into the anti-competitive effects and efficiencies commonly associated with exclusive dealing. Next, it discusses the treatment of exclusive dealing under Article 82, together with the analytical framework contained in the Article 81 (3) Notice, to shed light on the Consumer Surplus “balancing test” and its practical implications. Next, the article moves over to US practice under section 2 of the Sherman Act to explain how US courts look upon the potentially anti-competitive nature of exclusive dealing. This subsection concludes that—although there is no consensus on the required use of a fully fledged consumer welfare-balancing test and, accordingly, the evaluation of exclusive dealing under US law is to some extent “standardless”—US courts seem reasonably well able to arrive at sensible conclusions. This in particular applies to ex post evaluations of exclusive dealing. This approach will then be contrasted with the conventional application of Article 82 to exclusive dealing by the

Commission. Next, the methodology of the EC Commission’s Discussion Paper on exclusionary abuses with respect to exclusive dealing will be discussed and  commented upon. One main conclusion is that the Discussion Paper diverges from the EAGCP Report—which in itself suggests a test somewhere between a full effects test and a per se test—in that it resorts even more to proxies for anti-competitive foreclosure, potentially giving rise to Type 1 and Type 2 errors. This, combined with the general imperfections of the Discussion Paper with respect to the allocation of the burden of proof and the resulting consequences for firms to quantify consumer surplus effects if their exclusive dealing arrangements are challenged, will lead to the overall conclusions of the article. Implicit is the suggestion that the suggested framework for exclusive dealing may actually turn out to create an obstacle to courts to more fully appreciate the effects of these types of agreement."