Las propuestas de Hurtado Albir

The EAGCP Report is the first informal document that was issued in July 2005 during the modernisation process of Art.102. In line with the overall aim of the modernisation, the Report suggests a more economics-based approach to Art.102, which was quite different

170 Lowe (2006), p.3.

171 See <http://ec.europa.eu/competition/antitrust/art82/contributions.html> [accessed 30/09/2014].

172 See <http://ec.europa.eu/competition/antitrust/art82/hearing.html> [accessed 30/09/2014].

173 Whish and Bailey (2012), p.175.

174 Press Release, “Antitrust: Guidance on Commission enforcement priorities in applying Article 82 to exclusionary conduct by dominant firms – frequently asked questions”, MEMO/08/761, Brussels, 3 December 2008.

from the approaches of the Commission and of the EU Courts at that time. The EAGCP Report articulates from the outset that it advocates an effects-based approach to Art.102, as opposed to a form-based approach. The Report sets out general principles in its Chapter 1, followed by the articulation of three different types of competitive harm (exclusion within one market, exclusion in adjacent markets and exclusion in vertically related markets) in Chapter 2 and their application to certain types of exclusionary practices (price discrimination, rebates, tying and bundling, refusal to deal, exclusive dealing and predatory pricing) in Chapter 3.

According to the EAGCP Report, an economics-based approach to the application of Art.102 implies that the assessment of each specific case will not be undertaken on the basis of the form that a particular business practice takes but rather will be based on the assessment of anti-competitive effects generated by that business behaviour (para.3). By focusing on effects rather than forms of conduct, an economics-based approach makes it more difficult for dominant undertakings to circumvent competition rules by way of attempting to achieve the same end results through the use of different unilateral practices (para.2). It also guarantees that the statutory provisions do not unduly thwart pro-competitive practices as many business practices may have different effects in different circumstances: Distorting competition in some cases and promoting efficiencies and innovation in others (paras.2-3).

The application of this approach is expected to require a competition authority or a court to explain in each case a competitive harm from the dominant firm’s unilateral conduct and identify its detrimental effects on consumer welfare. If the conduct in question both generates anti-competitive effects and creates efficiencies (this is in fact one of the fundamental premises of the Report), then the competition authority or court should identify whether the anti-competitive effects are sufficiently outweighed by the efficiency gains and then how those efficiencies are passed on to consumers (para.3). Put another way, the first step is to identify and substantiate with economic arguments one of the three typologies of competitive harm¹⁷⁵ and determine any efficiency gain the conduct is capable

175 These are “exclusion within the same market” where a dominant firm excludes an actual competitor or a potential competitor, “exclusion in an adjacent market” where a dominant firm excludes competitors that are

of producing, followed by the second step of assessing whether efficiencies counterbalance anti-competitive effects or vice versa. Therefore, the Report calls for a balancing test.¹⁷⁶

The EAGCP Report clearly requires the demonstration of effects on consumers.

Throughout the Report, the main concern stands out as consumer welfare. Accordingly, anti-competitive effects are those which are generated on consumers, not merely on competitors. Conduct that harms consumer welfare is abusive.¹⁷⁷ In other words, competition is “on the merits” when conduct does not harm consumers, as the Report states that the standard for assessing whether a given practice is detrimental to competition or whether it is a legitimate tool of competition should be derived from the effects of the practice on consumers (para.8). The Report objects to the protection of competition with a view to preserving a particular market structure, since this may merely have the effect of protecting competitors from competition and enable them to maintain their presence in the market even though their offerings do not provide consumers with the best choices in terms of prices, quality or variety (para.9).

Since the proposed effects-based approach requires a departure from the form-based approach that the Commission and the EU Courts have relied upon thus far, the EAGCP Report also includes a section on procedure. As already mentioned, the first step is to determine the competitive harm of concern; there should be ‘a consistent and verifiable economic account of significant competitive harm’ (para.13). The assessment should be based on sound economic analysis and grounded on facts of each case. A competition authority or a court should identify the economic theory or theories on which the competitive harm is based, as well as the facts which support the theory as opposed to competing theories (para.15). The dominant firm may then come up with a convincing efficiency defence, which should be properly justified on the basis of sound economic analysis and grounded on facts. One radical aspect of the Report is that arguably it does not

active in markets different but related to its main market and finally “exclusion in a vertically related market”

which takes place in different stages of the production chain (paras.17-29).

176 Unsurprisingly, the EAGCP Report advocates a rule of reason approach to Art.102 as opposed to a per se approach. ‘An economics-based approach will naturally lend itself to a “rule of reason” approach to competition policy, since careful consideration of the specifics of each case is needed, and this is likely to be especially difficult under “per se” rules’ (para.3).

177 ‘[A] lowering of consumer welfare provides evidence of competitive harm’ (para.8).

require a separate step for determining dominant position; a consistent and verifiable account of significant competitive harm is itself evidence of dominance (para.14).

All in all, the EAGCP Report was issued during the early years of the modernisation process and can be regarded as the first concrete call for a movement towards an effects-based approach, albeit non-binding on the Commission. The Report seems to have placed the consumer welfare objective at the forefront of the economic freedom objective in the enforcement of Art.102 and insists that formalism should be replaced with an evaluation of effects based on sound economics. A strong commitment to an effects-based approach, the emphasis placed on consumer welfare and the recognition of the fact that unilateral conduct can both create efficiencies and generate anti-competitive effects at the same time are the highlights of the Report. Mostly because it was prepared by a group of economists commissioned by the Chief Economist of the DG Comp and it departed from some traditional legal concepts in the enforcement of Art.102, in terms of the rigour of the economic analysis, the EAGCP Report was more advanced in contrast to both the Discussion Paper and the Guidance.

1.3.3. Discussion Paper on the Application of Art.82 EC to Exclusionary Abuses