Guidance on Abuse in Europe: The Continued Concern for Rivalry and a Competitive Structure

Abstract

Both the United States and the EU allegedly protect the competitive process through an effects-based approach to the analysis of exclusionary abuses. Importantly though, each jurisdiction starts from a different end of the spectrum. The article finds that while U.S. antitrust appears to protect the competitive process to enhance consumer welfare in the form of allocative and productive efficiency, EU competition law protects the structure of competition to protect rivalry. When applying Article 102 TFEU, the European Commission and the courts rely on two presumptions that hearken back to Ordoliberalism. The existence of dominance creates a presumption of harm to the structure of competition (foreclosure), and that harm to the structure of competition in turn creates a presumption of likely harm to consumers (anticompetitive foreclosure). These presumptions are apparent in case law as well as the Commission's Guidance Paper on Article 102. This article concludes that despite having the same aim, there is still a transAtlantic divide about how best to protect the competitive process.