Why the European Commission's Enforcement Priorities on Article 82 EC Should Be Withdrawn

On December 3, 2008, the Commission issued its Guidance on the Commission's Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings (the “Guidance Paper”). This marks the end of the Commission's review on art. 82, which the Commission initiated in the summer of 2003. Prior to the Guidance Paper, DG Competition (“DG Comp”) released its Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses in December 2005 (the “Discussion Paper”). This was an unusual step compared to the Commission's normal practice of producing a Green Paper, and may hint at a disagreement within the Commission as to publishing guidelines at all. The Discussion Paper was a staff paper, which was meant only for consultation to allow interested parties to express their view on a text that might become substantive guidelines later. It was not an authoritative source or even published in the Official Journal. Despite being no more than a staff discussion paper, it was drafted as substantive guidelines, which raised expectations of the Commission issuing substantive guidance at a later stage. Against these expectations, the Commission issued enforcement priorities on art. 82. This naturally raises two questions: (i) why did the Commission decide to issue enforcement priorities instead of substantive guidelines; and (ii) is the Guidance Paper in its current form a good solution? This paper explains the Commission's uneasy relationship with case law in this area of law, its desire to develop its policy beyond the framework of the Community Courts -- the Court of First Instance (CFI) and European Court of Justice (ECJ) -- and why “enforcement priorities” is not an ideal solution.