I submit that over the last two or three years, we may observe troubling signs that Article 82 of the EC Treaty is being used more as an adjunct to industrial policy than as a pure competition law tool. This is especially evident in refusal to deal cases. The intervention of antitrust in a situation of refusal to deal is a critical pointer of how an antitrust enforcer perceives itself and of what kind of competition law is in force. At a time when ten new agencies have joined the family, it is especially desirable to approach controversies in a sober manner. It would be unfortunate if EC law as applied in Brussels appeared to be presenting a misleading example. It is difficult to deny the existence of a clear divergence in this area between the more liberal or minimalist approach which prevails in the United States and has recently been celebrated by the Supreme Court in Verizon Communications, Inc. v. Law Offices of Curtis Trinko, and the more formalistic or maximalist approach of the Commission. The Commission attributes comparatively lower weight to a dominant player's freedom to run its own business, and comparatively more weight to the protection of competitors than U.S. courts. It may also reflect a longstanding transatlantic difference as to the risk of the negative consequences for the economy of unsound intervention. The Trinko judgment was the counterpart of Bronner, standing for the principle that only in the rarest circumstances should a dominant player be obliged to do business against its will. I will center my analysis and criticism of the Commision's controversial new thinking by referring to these two very revent cases, in both of which I am involved.
Ian S. Forrester,
Article 82: Remedies in Search of Theories?,
28 Fordham Int'l L.J. 919
Available at: http://ir.lawnet.fordham.edu/ilj/vol28/iss4/3