The Law and Economics of Article 82 EC

Robert O'Donoghue is a Barrister at Brick Court Chambers, London and Brussels, specialising in European law, particularly competition law.A Jorge Padilla is Managing Director of Law & Economics Consulting Group (LECG), Madrid, and Co-Chair of LECG's Antitrust Competition group in Europe.

1. INTRODUCTION, SCOPE OF APPLICATION, AND BASICFRAMEWORK 1.1 INTRODUCTION1.2 HISTORY, DEVELOPMENT, AND MODERNISATION OF1.3 ENTITIES AND ACTIVITIES BOUND BY ARTICLE 82 EC1.4 RELATIONSHIP BETWEEN ARTICLE 82 EC AND OTHER LEGAL INSTRUMENTS 1.5 THE BASIC PROCEDURAL FRAMEWORK2. MARKET DEFINITION2.1 INTRODUCTION2.2 PRODUCT MARKET DEFINITION: BASIC CONCEPTS2.3 RELEVANT PRODUCT MARKETS: FROM THEORY2.4 GEOGRAPHIC MARKET DEFINITION2.5 SELECTED ISSUES ON MARKET DEFINITION3. DOMINANCE3.1 INTRODUCTION3.2 SINGLE FIRM DOMINANCE3.3 COLLECTIVE DOMINANCE3.4 DOMINANT BUYERS3.5 "SUPERDOMINANCE"3.6 COMPARING DOMINANCE UNDER ARTICLE 82 EC AND OTHER COMMUNITY LEGISLATION3.7 SUBSTANTIAL PART OF THE COMMON MARKET4. THE GENERAL CONCEPT OF AN ABUSE4.1 INTRODUCTION4.2 THE ECONOMICS OF ABUSIVE UNILATERALCONDUCT4.3 THE CATEGORIES OF ABUSE UNDER ARTICLE 82 EC4.4 ANTICOMPETITIVE EFFECTS UNDER ARTICLE 82 EC4.5 OBJECTIVE JUSTIFICATION5. PREDATORY PRICING5.1 INTRODUCTION5.2 THE ECONOMICS OF PREDATORY PRICING5.3 THE BASIC RULES ON BELOW-COST PRICE CUTTING UNDER ARTICLE 82 EC 5.4 SPECIFIC ISSUES WITH BELOW-COST PRICING UNDER ARTICLE 82 EC5.5 EXCLUSIONARY ABOVE-COST PRICE CUTS UNDER ARTICLE 82 EC5.6 OBJECTIVE JUSTIFICATION6. MARGIN SQUEEZE 6.1 INTRODUCTION6.2 THE ECONOMICS OF MARGIN SQUEEZE6.3 BASIC LEGAL CONDITIONS FOR A MARGIN SQUEEZE6.4 THE RELATIONSHIP BETWEEN MARGIN SQUEEZE AND OTHER ABUSES6.5 DIFFICULTIES WITH IDENTIFYING AN ANTICOMPETITIVE MARGIN SQUEEZE IN PRACTICE6.6 DISCRIMINATORY MARGIN SQUEEZES AND RELATEDSTRATEGIESDominant Firm6.7 CONFLICTS BETWEEN REGULATION AND COMPETITION LAW IN MARGIN SQUEEZE CASES7. EXCLUSIVE DEALING, LOYALTY DISCOUNTS, AND RELATEDPRACTICES7.1 INTRODUCTION7.2 EXCLUSIVE DEALING7.3 LOYALTY DISCOUNTS7.4 SUMMARY AND CONCLUSION8. REFUSAL TO DEAL8.1 INTRODUCTION8.2 THE ECONOMICS OF REFUSAL TO DEAL8.3 THE DUTY TO DEAL WITH COMPETITORS8.4 DUTY TO DEAL WITH CUSTOMERS UNDER ARTICLE82 EC9. TYING AND BUNDLING9.1. INTRODUCTION9.2 THE ECONOMICS OF TYING AND BUNDLING9.3 THE APPROACH TO TYING AND BUNDLING UNDER ARTICLE 82 EC9.4 SUGGESTED ALTERNATIVE APPROACHES TO TYING9.5 CONCLUSIONS10. EXCLUSIONARY NON-PRICE ABUSES10.1 INTRODUCTION10.2 EXAMPLES OF EXCLUSIONARY NON-PRICE ABUSES11. ABUSIVE DISCRIMINATION11.1 INTRODUCTION11.2 THE ECONOMICS OF PRICE DISCRIMINATION11.3 LEGAL CONDITIONS FOR ABUSIVE DISCRIMINATION11.4 SPECIFIC EXAMPLES OF ABUSIVE DISCRIMINATIONUNDER ARTICLE 82(C)11.5 OBJECTIVE JUSTIFICATION11.6 SUMMARY AND CONCLUSION12. EXCESSIVE PRICES 12.1 INTRODUCTION 12.2 THE ECONOMICS OF EXCESSIVE PRICES 12.3 THE LEGAL TEST(S) FOR EXCESSIVE PRICES12.4 DIFFICULTIES WITH THE CURRENT APPROACH TO EXCESSIVE PRICES UNDER ARTICLE 82 EC12.5 ALTERNATIVE APPROACHES TO EXCESSIVE PRICING UNDER ARTICLE 82 EC 12.6 CONCLUSION13. OTHER EXPLOITATIVE ABUSES13.1 INTRODUCTION13.2 ABUSE OF MONOPSONY PURCHASING POWER13.3 UNFAIR AND EXPLOITATIVE CONTRACT TERMS14. EFFECT ON TRADE14.1 INTRODUCTION14.2 BASIC LEGAL CONDITIONS FOR EFFECT ON TRADE14.3 SPECIFIC APPLICATIONS OF THE EFFECT ON TRADE CONCEPT15. REMEDIES15.1 INTRODUCTION15.2 GENERAL PRINCIPLES GOVERNING REMEDIES15.3 PRINCIPAL TYPES OF ADMINISTRATIVE DECISIONS15.4 PRINICIPAL TYPES OF REMEDIES 15.5 PRIVATE LITIGATION AND REMEDIES