Article 82 is traditionally analysed as a tool to integrate and liberalise the European Single Market and to protect competition from distortion. As such there is no comprehensive discussion of the tensions that lie at the centre of the objective of protecting competition in the current rethinking of Article 82. With regard to exclusionary abuses, DG Competition has articulated that the main objective of Article 82 is the protection of competition in the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. This statement may conflict with some of the case law protecting the economic freedom of the market players derived from ordoliberalism. The latter is a well respected German legal tradition that holds both that government needs to be restrained from abuse of power, and that the free market has its limits. Economic rights deserve protection and vigilance is needed to ensure economic power is not misused or abused, not only in the interests of consumer welfare, but also in the interests of the economic liberty of the individual. This thesis considers the tension between the goals of protecting economic freedom and the promotion of consumer welfare in the application of Article 82. Presupposing that economic freedom and consumer welfare are in opposition to one another, such tension is only set to intensify and must be given appropriate weight in considering the extent to which DG Competition can or should try to move to a consumer welfare standard. Changing the interpretation of protection of competition from economic freedom to consumer welfare within Article 82 can undermine a fundamental right if economic freedom is considered a fundamental right in the Community legal order. However, consumer welfare can also be seen as an opportunity, if properly debated or agreed to by the ECJ, to adopt a more economics-based approach to Article 82.

Master’s Thesis in Competition Policy Title: ”The Microsoft Case – A reflection on the tying of Windows Media Player and the Commission Decision of 24 March 2004 (Case COMP/C- 3/37.792)” Author: Ursula Ferrari Tutor: Göran Wahlgren Date: [2005-05-23] Subject terms: Competition Policy, EU law, Abuse of dominance, tying Abstract This Master’s thesis is an analysis of the European Commission Decision in the Microsoft Case-COMP/C-3/37.792 and the tying as an abusive practice prohibited by Article 82 of the EC Treaty. In this case the European Commission (Commission) applied a rule-of-reason approach for the first time to Microsoft’s tying practice and considered it to be anticompetitive. Microsoft tied its Windows Media Player (WMP) to its client operating system Windows and after a thorough analysis done by the Commission, Microsoft was considered to have abused its dominant position. In the past the Commission and the European Court of Justice used a per se illegality approach to tying practices and it was enough to establish that a company which applied the tying strategy was dominant in the tying product market. The hostile approach taken by the Commission and the ECJ has been criticized by economists mainly because tying is a commonly applied business strategy in the world economy and companies apply this be-cause of the economic efficiencies that this business strategy leads to. The efficiency gains are indirectly past on to the consumers in the form of product quality and innovation, reduced transaction costs and lower prices. It is argued that tying in fact increase consumer welfare. Economists would therefore rather see a per se legality approach or at least a rule-of-reason approach in the future. Due to the complexity of the Microsoft case, the Commission had to do a thorough analysis of the actual impact that the tying of WMP had on the market and the foreclosure effects that this strategy might lead to. This was therefore the first time that a rule-of-reason approach was applied on the matter of tying. However, after the Commission’s Decision of the Microsoft case there is still uncertainty in this matter. There is a strong need for future clarification. Microsoft Corporation has lodged an appeal against the Commission’s Decision with the European Court of Justice but it will take several years before the ECJ will be able to give a final judgement of the case. Until then the legal certainty is yet still very unclear.

<p>Master’s Thesis in Competition Policy Title: ”The Microsoft Case – A reflection on the tying of Windows Media Player and the Commission Decision of 24 March 2004 (Case COMP/C- 3/37.792)” Author: Ursula Ferrari Tutor: Göran Wahlgren Date: [2005-05-23] Subject terms: Competition Policy, EU law, Abuse of dominance, tying Abstract This Master’s thesis is an analysis of the European Commission Decision in the Microsoft Case-COMP/C-3/37.792 and the tying as an abusive practice prohibited by Article 82 of the EC Treaty. In this case the European Commission (Commission) applied a rule-of-reason approach for the first time to Microsoft’s tying practice and considered it to be anticompetitive. Microsoft tied its Windows Media Player (WMP) to its client operating system Windows and after a thorough analysis done by the Commission, Microsoft was considered to have abused its dominant position. In the past the Commission and the European Court of Justice used a per se illegality approach to tying practices and it was enough to establish that a company which applied the tying strategy was dominant in the tying product market. The hostile approach taken by the Commission and the ECJ has been criticized by economists mainly because tying is a commonly applied business strategy in the world economy and companies apply this be-cause of the economic efficiencies that this business strategy leads to. The efficiency gains are indirectly past on to the consumers in the form of product quality and innovation, reduced transaction costs and lower prices. It is argued that tying in fact increase consumer welfare. Economists would therefore rather see a per se legality approach or at least a rule-of-reason approach in the future. Due to the complexity of the Microsoft case, the Commission had to do a thorough analysis of the actual impact that the tying of WMP had on the market and the foreclosure effects that this strategy might lead to. This was therefore the first time that a rule-of-reason approach was applied on the matter of tying. However, after the Commission’s Decision of the Microsoft case there is still uncertainty in this matter. There is a strong need for future clarification. Microsoft Corporation has lodged an appeal against the Commission’s Decision with the European Court of Justice but it will take several years before the ECJ will be able to give a final judgement of the case. Until then the legal certainty is yet still very unclear.</p>

Use of Theories of Harm in the Application of Art. 102 TFEU Abstract This master's thesis presents a study of the impact of European Union competition law on the area of abuse of dominance. It maps the usage of the effects-based approach and consumer welfare standard in abuse of dominance cases pursuant to Article 102 of the Treaty on the Functioning of the European Union. This is done by an analysis of the theories of harm advanced in the case law of the European Commission in prohibition decisions from the last twenty years. The thesis begins by a theoretical discussion and outline of the boundaries to the Commission's discretion in this area, as set by Union courts. Then, a short description of the process of competition law modernisation in Europe continues. In the subsequent analytical part, the cases are tested against two criteria. The first criterion is whether the Commission has analysed the actual or likely effects of a dominant undertaking's conduct. The second criterion is whether the Commission tested the pertinent conduct against a consumer welfare standard. In the final chapter, the results of the analysis are discussed. The conclusion of this thesis is that the Commission's case law did shift to a more effects- based approach over time and that the Commission does attempt to take the...

For several years, the literature has discussed whether a country’s particular economic circumstances should be taken into account in competition law and policy design. This thesis discusses whether economic growth should be considered as the guiding principle for Latin American Emerging Economies’ competition law and policy design. It specifically explains why having economic growth as competition policy’s guiding principle makes a difference in choosing superior rules and standards, among the large range of efficient rules. In order to explain how economic growth as a guiding principle has an impact on competition policy design, this thesis studies whether the analysis and application of the prohibitions and standards of abuse of dominance in emerging Latin American economies are appropriate, and why, having regard to economic growth, a different approach might be justified. To engage in the study of such questions this thesis centres on the regulation of dominance and the law governing abuse of dominance, in particular on predatory pricing and excessive pricing. After a careful analysis of such institutions, an optimal rule for the regulation of pricing abuses in these emerging economies is proposed. Similarly, having regard to economic growth as the policy’s guiding principle, the mainstream standards on excessive pricing and price predation are evaluated and a different approach is found to be justified. It is concluded that economic growth should be the principle guiding Latin American emerging economies’ competition law and policy design and it is demonstrated that this will grant these economies policy soundness and identity.

Forms of abuse of dominance in the area of the Internet platforms The thesis is dedicated to the topic of abuse of dominant position in the area of the Internet platforms. Its aim is, firstly, to outline the challenges arising from the specific nature of the area, which might, from the competition-authorities' point of view, complicate the enforcement of competition law in the case of abuse of dominance. Secondly, the thesis tries to find the answer on the question to what extent these problems have been reflected in the existing decision-making practice. The structure of the thesis is divided into four main parts. The first part is an introduction. The second part provides an essential introduction to the area in question. It defines the term "Internet platform", provides an overview of the most important types of the Internet platforms and describes the specifics of the area in question, whose description is essential for the following parts. The third part analyses the problems that competition law may face in the context of possible abuse of dominance within the meaning of Art. 102 TFEU in the area of the Internet platforms. This section is divided according to three basic steps of a competition analysis of abuse of dominance, i.e. definition of the relevant market, the determination of market...

Agentes econômicos com posição dominante são capazes de se conduzir de maneira independente na sua atividade comercial. Da mesma forma, possuem todos os incentivos para manutenção desta posição, em detrimento de seus concorrentes, fornecedores e clientes. O presente trabalho visa, inicialmente, em estudo comparado da doutrina e jurisprudência no Brasil, União Europeia e Estados Unidos, identificar os elementos de cognição da teoria do abuso de posição dominante para cinco modalidades de conduta. A partir daí traçamos seus elementos de correlação com o propósito de sugerir uma teoria aplicada ao ordenamento jurídico pátrio, que passa pelo reconhecimento da concorrência como garantia institucional, de forma a estabelecer-se igualdade material segundo a teoria da função social dos meios de produção. A presença constante da concorrência nos mercados deve ser tratada como presunção de bem-estar social. E finalmente, valendo-se destes elementos de suporte, propomos uma teoria da responsabilidade especial para agentes econômicos em posição dominante, que implicaria o dever de autoaplicação dos limites permitidos para sua conduta comercial, cujo descumprimento ensejaria presunção relativa de efeitos deletérios ao mercado, segundo os parâmetros propostos. / Firms enjoying dominant position are able to conduct themselves independently in their commercial activities. Likewise, they hold all due incentives to maintain such position, in detriment of their competitors, suppliers and clients. The present work aims, initially, through a comparative study of the Brazilian, the European Union and the United States\' legal doctrine and jurisprudence, to identify cognitive elements of the abuse of dominance theory, for five different natures of conducts. Subsequently, we identify their elements of connection with the purpose of suggesting a theory applicable to the local legal system, which includes the recognition of competition as an institutional guarantee, so to establish a material equality according to the theory of social function of productive assets. The constant presence of competition on the markets shall be treated as a presumption of social welfare. And finally, based on such supportive elements, we propose a theory of special responsibility for dominant firms that implies in a duty of self-application of the permitted limits for their commercial conduct, and which infringement would entail a relative presumption of harmful effects to the market, pursuant to the proposed parameters.

Agentes econômicos com posição dominante são capazes de se conduzir de maneira independente na sua atividade comercial. Da mesma forma, possuem todos os incentivos para manutenção desta posição, em detrimento de seus concorrentes, fornecedores e clientes. O presente trabalho visa, inicialmente, em estudo comparado da doutrina e jurisprudência no Brasil, União Europeia e Estados Unidos, identificar os elementos de cognição da teoria do abuso de posição dominante para cinco modalidades de conduta. A partir daí traçamos seus elementos de correlação com o propósito de sugerir uma teoria aplicada ao ordenamento jurídico pátrio, que passa pelo reconhecimento da concorrência como garantia institucional, de forma a estabelecer-se igualdade material segundo a teoria da função social dos meios de produção. A presença constante da concorrência nos mercados deve ser tratada como presunção de bem-estar social. E finalmente, valendo-se destes elementos de suporte, propomos uma teoria da responsabilidade especial para agentes econômicos em posição dominante, que implicaria o dever de autoaplicação dos limites permitidos para sua conduta comercial, cujo descumprimento ensejaria presunção relativa de efeitos deletérios ao mercado, segundo os parâmetros propostos. / Firms enjoying dominant position are able to conduct themselves independently in their commercial activities. Likewise, they hold all due incentives to maintain such position, in detriment of their competitors, suppliers and clients. The present work aims, initially, through a comparative study of the Brazilian, the European Union and the United States\' legal doctrine and jurisprudence, to identify cognitive elements of the abuse of dominance theory, for five different natures of conducts. Subsequently, we identify their elements of connection with the purpose of suggesting a theory applicable to the local legal system, which includes the recognition of competition as an institutional guarantee, so to establish a material equality according to the theory of social function of productive assets. The constant presence of competition on the markets shall be treated as a presumption of social welfare. And finally, based on such supportive elements, we propose a theory of special responsibility for dominant firms that implies in a duty of self-application of the permitted limits for their commercial conduct, and which infringement would entail a relative presumption of harmful effects to the market, pursuant to the proposed parameters.

Chinese Antimonopoly Law in the Light of Competition Law of the European Union: Comparative Perspective. The subject of the thesis is the comparative analysis of Chinese antimonopoly law and competition law of the EU. The thesis aims to identify the traces of the competition law of the EU in Chinese antimonopoly law as well as analyze transplanted legal concepts, in order to determine, whether these concepts are endowed with the same normative reach. The first part of the thesis provides brief introduction into the history of antimonopoly law in PRC. Following chapters analyze relevant parts of AML and implementing regulation, which are after short description of the corresponding arrangement in European law compared with the latter. General principles and definitions, which are applicable in all pillars of competition law, are dealt with in the first place. Further the analysis of the agreements restricting competition, abuse of dominance, as well as mergers of undertakings follows. With regard to the importance of effective application of antimonopoly law in practice, a short chapter is also devoted to the role of courts in implementation of antimonopoly law in PRC. The closing part sums up the pillars of competition law, which have been built on the model of the competition law of the EU and...

No other markets have likely ever been as closely part of our everyday lives as digital markets have. Digital markets can be described as a place for innovation where new products, services, and companies pop up on a nearly daily basis. These markets can at the same time be described as highly concentrated, in the hands of a few, who control the market, and make the rules on the market. It is without a question that digital markets are full of possibilities for innovative companies and therefore it is of such importance that these markets are protected and kept as fair, competitive, and transparent as possible. There have been concerns whether the existing competition law is the best tool to be used on digital markets and whether the often-lenghty process of Article 102 TFEU can, or at least effectively can, control these gatekeepers controlling digital markets. The purpose of the thesis is therefore to analyse the existing and new theories of harm when it comes to Article 102 TFEU and whether they could be useful in the Commissions' ongoing investigations against these gatekeepers. As existing theories of harm margin squeeze, unfair contractual terms and conditions as well as tying will be analysed and their applicability in the digital markets. While some conducts might fall under the existing theories of harm others won't and thereof it is worth looking into new theories of harm such as self-preferencing, forced free riding, and privacy policy tying, in order to determine whether they could be used by the Commission.  While the application of Article 102 TFEU is of great importance, the Commission has also drafted a proposal called Digital Markets Act which would be an ex-ante tool to be used alongside EU competition law and which could help address the problems the current competition law isn't at least effectively addressing. The Digital Markets Act is based on certain undertakings when fulfilling the criterium, being defined as gatekeepers, and when defined as such, the obligations of the Digital Markets Act become applicable. This would offer the Commission a tool that is likely more efficient and legally certain than the application of Article 102 TFEU. Since the existing competition law hasn't been able to prevent digital markets becoming even more and more concentrated, the Digital Markets Act might be exactly what is needed in order to secure the internal market remaining competitive, fair, contestable, and transparent.