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Competition Policy in the EUFifty Years on from the Treaty of Rome$
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Xavier Vives

Print publication date: 2009

Print ISBN-13: 9780199566358

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199566358.001.0001

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Article 81 EC Revisited: Deciphering European Commission Antitrust Goals and Rules

Article 81 EC Revisited: Deciphering European Commission Antitrust Goals and Rules

(p.43) 3 Article 81 EC Revisited: Deciphering European Commission Antitrust Goals and Rules
Competition Policy in the EU

Matthew Bennett

A. Jorge Padilla

Oxford University Press

This chapter provides a brief overview of Article 81 EC and considers the implications of two recent Court of First Instance (CFI) judgments (Glaxo and O2 (Germany)) for the understanding of (i) the ultimate goal of Article 81; and (ii) the nature and structure of the test to be applied by European competition authorities and courts in the assessment of horizontal and vertical agreements. It discusses the implications of those judgments for the ongoing debate in connection with the reform of Article 82 EC. While the current debate on Article 82 is characterized by the confrontation between those that defend an ordo-liberal approach to antitrust enforcement (based on ambiguous concepts such as ‘competition on the merits’, ‘normal competition’, ‘objective justification’, or ‘special responsibility’) and those who defend an unstructured rule of reason, disregarding that ‘administrability’ and ‘legal certainty’ are key desirable characteristics in competition law, the recent Article 81 case law provides an intermediate and more pragmatic approach to the competitive assessment of business practices. A structured approach that, while accepting the need to balance the pro-competitive and anticompetitive effects of those practices, recognizes the difficulty and the transaction and error costs associated with such complex balancing exercises.

Keywords:   agreements, Article 81, Article 82, EC law, balancing rules, competition law, Rule of Reason

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