ABUSE OF A DOMINANT POSITION - Advocatennet

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II. Exclusionary abuses: analytical framework (4) - Commission’s Discussion Paper - • A two-prong legality test – Foreclosure: market distorting effect (points 58-59 COM discussion paper) • Capability to foreclose (nature or form of conduct), • Incidence, i.e. market coverage of conduct, network effects • Degree of market power – very similar to Delimitis in Art. 81-1 – Consumer harm: no defenses (points 77-79 COM discussion paper) • Objective justifications: objective necessity, meeting competition • Efficiencies: balancing anti-competitive and pro-competitive effects 10
II. Exclusionary abuses: analytical framework (5) - Commission’s Discussion Paper - • Efficiencies: burden of proof – Art. 2 Regulation n°1/2003 – but see Glaxo Wellcome • Efficiencies: standard of proof – Proportionality test (cf. § 90 discussion paper; cf. § 79COMnoticeonArt on Art. 813 81-3 EC) – No substantial lessening of competition (cf. § 91 discussion paper; cf. § 105 COM notice on Art. 81-3) – but see Glaxo Wellcome 11
Page 1 and 2: Brussels Bar, Flemish Section 3rd I
Page 3 and 4: • Continental Can I. Art. 82 EC:
Page 5 and 6: I. Art. 82 EC: general issues (3) -
Page 7 and 8: II. Exclusionary abuses: analytical
Page 9: II. Exclusionary abuses: analytical

ABUSE OF A DOMINANT POSITION - Advocatennet

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