The EC Commission’s Guidance Paper on the Application of Article 82 EC: An Efficient Means of Compliance for Germany?

"This article aims to introduce the GP’s key features, which require extensive analysis. It will therefore examine in detail the concepts of consumer welfare, anti-competitive foreclosure, consumer harm—even in the absence of a persuasive theory of harm—the efficiency-based defence and balancing test, and some issues that apply to such selected types of exclusionary abuse as predation  and tying. It will also discuss how the GP could be perceived from the perspective of German competition law and policy, and what kind of transitional regime might be required for the effective implementation of its major analytical concepts. The central issue is therefore to answer the simple questions of how efficient it really is to reform Article 82 by means of a soft-law instrument, and whether the GP presents an efficient means of compliance for Germany. "