ICC Comments on the European Commission discussion paper on the application of Article 82 of the Treaty to exclusionary abuses

We hope that our comments will be helpful. We welcome the opportunity to expand upon our comments, if necessary.
In the currently contemplated guidelines there are positive aspects, mainly in the central concern to enhance consumer welfare and to protect competition and not competitors. We recommend that such a welfare-based approach be more supported in the overall design of these guidelines.

Consumer welfare does not necessarily equate to the public interest more generally, and short term consumer welfare and the wider public interest may differ. The interrelationship between the purposes of antitrust and the wider public interest should be made more explicit.
Consistent with a welfare-based approach would be a clearer acknowledgement that as specific business conduct may simultaneously give rise to (short term) efficiency gains and (longer term) negative effects, the reviewing agency necessarily must take account of both effects in its (initial) finding of abusive behavior.

Moreover, as the contemplated guidelines are likely to be relied upon by a large number of decision makers, including national courts, it would be helpful if the guidelines would make clear that - in ex ante assessments of conduct under Article 82 - the finding of an abuse of a dominant position is subject to a rigorous standard of proof, relating to the successive future chain of events ultimately giving rise to the negative effects on consumers required under Article 82. In ex post reviews, a key element in the evaluation is the causal connection between the alleged abuse and those negative effects.