Modernisation of Article 82 EC and Refusal to Supply: Any Real Change in Sight?

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Series Details Volume 2, Number 2, Pages 337-369
Publication Date December 2006
ISSN 1744-1056
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"This is a very fervid period for EC competition law and policy. There is a new enforcement regulation, a new merger regulation, a Green Paper on damages actions, guidelines on the application of fees, a draft Community Framework for State Aid for research, development and innovation, a proposal for the revised version of the de minimis notice and new block exemption regulations. This is also a transitional and settling phase for EC competition law as a whole. The integration of the internal market is increasingly emerging as a reality. The need for an economic approach toward competition law issues has been openly recognised and will slowly evolve at the EU and national level. There is the pressure and challenge of globalisation, and the growing recognition of the urgency for achieving international cooperation. In this context of new developments as well as consolidation, the current focus in the discussion of EC competition law discussions has turned to the “modernisation”, or, more precisely, “a comprehensive reassessment”, of the
notion of abuse of dominant position under Article 82 EC. Following significant decisions (AstraZeneca, Microsoft, Wanadoo Interactive, IMS, Michelin II), on 19 December 2005, the EU Commission launched a public discussion on the application of Article 82 to exclusionary abuses (Discussion Paper, or DP). The period for public responses and comments ran until 31 March 2006. The Commission is currently reviewing the many issues raised by the Discussion Paper and will then probably elaborate guidelines for the assessment of Article 82 abuses."
"This paper, after briefly describing the object and the aims of Article 82 EC in light of the Discussion Paper, examines whether the Discussion Paper is capable of properly guiding and helping undertakings, their consultants, the courts and authorities in the assessment of refusal to supply cases."
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