The EU Commission's New Communication on the Application of Article 82 to Exclusionary Conduct - Compromise, Pastiche, Holding Action, Tight-Rope Walk, Exercise in International Antitrust Diplomacy

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Over the past eight years, the European Commission (“Commission”) has been engaged in a programme to modernize substantive EU competition law and the structures for its enforcement. The goal has been to ground the substantive law firmly in an approach based on analysis of economic effects in the market. In a series of new guidelines and group exemptions, the Commission has revised the law under Article 81 of the EC Treaty on horizontal and vertical restrictions and on technology transfer agreements, and refined and redefined the substantive content of the “significantly impede effective competition” test under the EU Merger Regulation. The structure of enforcement has been thoroughly revised in Regulation 1/2003 and its flanking notices and guidelines. The last missing piece of this programme was the modernization of the law under Article 82.

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