Searching for the Long-Lost Soul of Article 82EC
CCP Working Paper No. 07-5
Posted: 3 Apr 2007 Last revised: 27 Mar 2010
Date Written: March 1, 2007
This paper examines the 'travaux preparatoires' (prepatory documents) of Article 82EC which have so far been disregarded in the literature in order to find out the legislative intent of the provision. The legislative intent is important for understanding what Article 82EC currently is and aims at since its objectives have never been set out clearly by Community institutions. By using the 'travaux preparatoires' the paper seeks to defy the common position that Article 82EC is based on 'ordoliberal' foundations. It shows that the drafters of Article 82EC were mainly concerned with increasing 'efficiency' and were not against accumulation of power per se. They did not intend to protect the competitors of dominant undertakings, but merely their customers. Thus, the provision was intended to apply to only 'exploitative' abuses and not 'exclusionary' abuses. Their main worry being 'increasing the size of the pie', their position on the objective of Article 82EC was closer to what one might today call 'total welfare' than 'consumer welfare'.
Keywords: Abuse of a dominant position, legislative intent, 'travaux preparatoires', welfare, abuse, efficiency
JEL Classification: K21
Suggested Citation: Suggested Citation