This article discusses the reasons for a more effects-based approach in the application of Articles 81 and 82 (EC) and identifies the main challenges which must be met when making this approach operational. Both for Article 81 and for Article 82, the current assessment of infringements follows a structured scheme and includes the use of safe-harbours and presumptions. The search for the proper mix is an ongoing task. The article argues that the shift from a notification system to a more prosecutorial-style application of Article 81, resulting from Regulation 1/2003, suggests a more symmetric application of Articles 81 and 82. However, symmetry does not mean exporting an Article 81(3) style assessment into Article 82, as sometimes understood. The article submits that it requires, above all, that the assessment of the entire competitive impact of the agreement or unilateral conduct on consumer welfare should be made in the first part of the analysis, that is when ascertaining an appreciable restriction of competition under Article 81(1) or the existence of an abuse under Article 82. A split assessment of the impact on competition of an agreement or conduct, postponing consideration of its allegedly positive effects to the heading of ‘exceptions’ or ‘defences’, has several shortcomings from both an economic and a legal viewpoint: above all, it is likely to lead to a biased assessment.
World Competition