Concurrences Revue des droits de la concurrence

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1 Concurrences Revue des droits de la concurrence Exploitative abuse: The end of the Paradox? Doctrines l Concurrences N pp Patrick Hubert l Avocat Marie-Laure Combet l Avocat encompetitions

2 Doctrines Patrick Hubert Avocat Marie-Laure Combet Avocat Abstract Whilst the prohibition of exploitative abuse in particular, of excessive pricing is normally the most protective of consumers, it is the least frequently prosecuted offence. This paradox, which is justified by the existence of strong conceptual objections and practical difficulties, may appear immutable. However, despite the appealing character of the current state of play, some recent signals may suggest a possible revival of exploitative abuse. The present Article proposes to analyse these signals. It also advocates a calibrated revamping of exploitative abuse and sets out some reflections on how its implementation could be improved, in particular in the perspective of the development of private enforcement. Bien que l infraction d abus d exploitation englobant en particulier la pratique des prix excessifs soit la plus protectrice des consommateurs, elle demeure la moins fréquemment réprimée. Ce paradoxe, justifié par l existence de fortes objections conceptuelles et par des difficultés pratiques, peut sembler insurmontable. Cependant, malgré l attrait de ce statu quo, quelques signes récents ont pu suggérer une possible résurgence de l abus d exploitation. Le présent article se propose d analyser ces signaux. Il préconise ensuite un dépoussiérage mesuré de l abus d exploitation et expose des pistes de réflexion sur la manière dont sa mise en œuvre pourrait être améliorée, en particulier dans la perspective d un développement des actions privées. Exploitative abuse: The end of the Paradox? 1. As pointed out by B. Lyons, 1 no better word than Paradox can be used to qualify the current approach to exploitative abuse in Europe. 2. The Paradox lies in the exclusion of exploitative abuse which is the most directly concerned with consumer harm since it encompasses all conducts by a dominant company resulting in direct loss of consumer welfare (e.g., excessive prices, unfair discrimination) whilst exclusionary abuse covers behaviour impairing the market structure which only indirectly harms consumers. This exclusion is twofold: exclusion from the Commission Guidelines on the application of Article 82 EC (now 102 TFEU) 2 and rare applications by European Competition Authorities. 3. A few years ago, when discussions on the draft 82 EC Guidelines were on-going, valuable proposals were put forward by the literature to revamp the concept of exploitative abuse. Now, the debate seems to be closed. 4. But is it really the end of the story? 5. Some signals, recent exploitation cases and proceedings, i.e., Google (a French case) [2010], 3 Grüne Punkt [2009], 4 Kanal 5 [2008], 5 Rambus [2009] 6 and Standard & Poor s [pending] 7 may augur a revival. This list is not all-inclusive as other exploitative cases were dealt with by NCAs in the same period 8 but the present Article will only focus on the aforementioned ones. 6. In addition, the Commission group actions initiative will inevitably trigger consumer claims related to exploitative abuses against (alleged) dominant companies. 7. The present article proposes to assess the pros of living with the paradox (I.), before analysing the signals of a possible revival (II.). It then concludes by advocating a calibrated revamping of the exploitative abuse enforcement (III.). I. Living with the paradox 8. Living with the paradox is an appealing idea as the objections to exploitative abuse are strong and the current approach, though not entirely clear, is pragmatic. 1 Bruce Lyons, The Paradox of the Exclusion of Exploitative Abuse, The Pros and Cons of High Prices, Konkurrensverket, Communication from the Commission Guidance on the Commission s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (OJ C 45, , p. 7-20) ( 82 EC Guidelines ). 3 FCA Dec. n 10-MC-01, 30 June 2010, relating to an application for interim measures lodged by Navx. This interim decision was not challenged by Google which submitted commitments to the FCA. See Dec. n 10-D-30, 28 October 2010, relating to practices implemented in the Internet advertising sector. See on this case, Patrick Hubert and Katrin Schallenberg, Google AdWords in France: The French Competition Authority takes a hard view of Google s commercial practices, Competition Law Insight, 21 September ECJ, 16 July 2009, Der Grüne Punkt - DSD v. Commission, case C-385/07 P, ECR 2009 p. I-06155, (upheld: CFI, 24 May 2007, Der Grüne Punkt - DSD v. Commission, case T-151/01, ECR 2007 p. II confirming EC Comm. Dec. 2001/463/ EC, 20 April 2001, DSD, case COMP D3/34493, OJ L 166, , p. 1 24). See on this case: Anne-Lise Sibony, La CJCE confirme l arrêt du TPICE et juge qu il n a jamais été demandé à un opérateur d accorder obligatoirement une licence sur sa marque, mais seulement de ne pas facturer des services non rendus (Der Grüne Punkt), Concurrences, n , n 29257, p ECJ, 11 December 2008, Kanal 5 Ltd and TV 4 AB v. STIM, case C-52/07, ECR 2008 p. I EC Comm. Dec., 9 December 2009, Rambus, case COMP/ EC Comm. Press releases, 19 November 2009, Antitrust: Commission confirms sending of Statement of Objections to Standard & Poor s (MEMO/09/508) and 12 January 2009, Antitrust: Commission opens formal proceedings against Standard & Poor s concerning securities identification numbers (MEMO/09/6) (case COMP/D2/39592). 8 See NCAs decisions comments in the Section Are exploitative abuses captured? in the Antitrust Encyclopaedia available at : Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 44

3 1.The objections to exploitative abuse are strong. 9. A first objection questions the relevance of an excessive pricing offence, as: exploitative abuse theoretically occurs each time a dominant firm operates in the market as it may, by definition, charge higher prices and produce lower output than if it were in a competitive situation; 9 high prices may be positive because they constitute a strong incentive for innovation and create an attraction for entry for other players whilst ill-calibrated price regulation may result in costly errors detrimental to consumer welfare, 10 e.g., prolong the monopoly by deterring new market entries. 10. Other objections relate to the practical difficulties. 11 Competition Authorities lack sufficient information to adequately assess what constitutes excessive pricing and are not familiar with the usual remedy, i.e., price regulation. 12 Moreover, they may not have sufficient resources to continue to monitor prices over time. 13 Another belief is that there are no administrable legal rules 14 on how excessive prices should be determined. 2. A pragmatic, though not entirely clear, approach 11. Aware of these objections and convinced that competitors exclusion is the most common abuse and often at the basis of later exploitation, 15 the Commission has made it clear that priority should be given to the former rather than to the latter. 16 As a result, there are only a handful of Commission decisions condemning exploitative abuse: over the period, 40 guilty verdicts relate to exclusion but only 11 to exploitation. 9 Jonathan Faull and Ali Nikpay, The EC Law of Competition, 2nd ed. Oxford, p David S. Evans and A. Jorge Padilla, Excessive prices: using economics to define administrable legal rules, CEMFI Working Paper No. 0416, September Emil Paulis, Article 82 EC and exploitative conduct, European competition law annual 2007: A reformed approach to article 82 EC, ed. Claus Dieter Ehlermann, Mel Marquis, Oxford: Hart Publishing; Massimo Motta and Alexandre de Streel, Excessive pricing in competition law: never say never?, The Pros and Cons of High Prices, Konkurrensverket, E.g.: Massimo Motta and Alexandre de Streel, Exploitative and Exclusionary Excessive Prices in EU Law, European Competition Law Annual 2003: What Is an Abuse of Dominant Position? in Claus-Dieter Ehlermann and Isabela Atanasiu, eds., Hart Publishing, 2006; Damien Geradin, The necessary limits to the control of excessive prices by Competition Authorities A view from Europe, Tilburg University Legal Studies Working Paper No See aforementioned Article by Massimo Motta and Alexandre de Streel, Exploitative and Exclusionary Excessive Prices in EU Law ; William Blumenthal, Discussant Comments on Exploitative Abuses under Article 82 EC, in Claus-Dieter Ehlermann and Isabela Atanasiu, eds., European Competition Law Annual 2003: What Is an Abuse of Dominant Position?, Hart Publishing, 2006; aforementioned Article by Emil Paulis. 14 Aforementioned article by David S. Evans and A. Jorge Padilla. 15 Speech of Neelie Kroes, Member of the European Commission in charge of Competition Policy, Preliminary Thoughts on Policy Review of Article 82 Speech at the Fordham Corporate Law Institute New York, 23rd September 2005 (SPEECH/05/537) and paragraph 7 of the 82 EC Guidelines. 16 E.g., aforementioned Speech by Neelie Kroes and aforementioned Article by Emil Paulis. See also: Paragraph 7 of the 82 EC Guidelines. 12. Most of these exploitation cases share at least two common features: they involve (near-) monopolies (but never markets with collective dominant position) and the victims are paradoxically (again!) companies, not final consumers. 2.1.The excessive-pricing offence puzzle 13. Pragmatism has led the Commission to the findings of exploitative pricing in only 4 cases 17, out of which only 2 18 were in fine upheld by the Courts. Unfortunately, this laudable pragmatism often goes hand-in-hand with a certain lack of predictability with regard to the tools used to determine excessive pricing. 14. Elaborating on the General Motors definition of excessive pricing, 19 the Court, in the landmark United Brands case, 20 specified that charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied would be such an abuse. 21 It also set out a two-stage test in accordance with which the Commission is required to (a) determine whether the amount of the profit margin is excessive by comparing the disputed price with production costs and, if so, (b) determine whether the price is either (i) unfair in itself or (ii) when compared to competing products. And it pragmatically acknowledged other possible ways of determining price unfairness. But the interpretation of this test is disputed by some authors, who consider that these two stages are not necessarily cumulative In any event, this test raises many practical difficulties. 16. Firstly, determining production costs is not easy. 23 Motta and de Streel 24 identified, inter alia, the following hurdles: (i) the risk of divergence between accounting and economic costs, (ii) the difficulty of allocating shared costs among different products, (iii) the need to consider system price on all markets for firms operating in multi-sided markets and (iv) the need to consider the cost of a hypothetical efficient firm when high costs may be the result of the lack of competition. In some cases, production costs cannot even be determined EC Comm. Dec. IV/28.851, 19 December 1974, General Motors Continental OJ 1975 L2l/14 and ECJ, 13 November 1975, General Motors v. Commission, case 26/75, ECR 1975 p ; EC Comm. Dec. 76/353/EEC, 17 December 1975 Chiquita, OJ 1976 L95/1 and ECJ, 14 February 1978, United Brands Company and United Brands Continentaal BV v. Commission, case 27/76, ECR 1978 p ; EC Comm. Dec. 84/379/EEC, 2 July 1984, British Leyland Public Limited, OJ 1984, L207/11 and ECJ, 11 November 1986, British Leyland Public Limited Company v. Commission, case 226/84, ECR 1986 p and EC Comm. Dec. 2001/463/EC and ECJ, 16 July 2009, Der Grüne Punkt - Duales System Deutschland GmbH v. Commission, case C-385/07P, ECR 2009 p. I Aforementioned cases 226/84 and C-385/07P. 19 Aforementioned case 26/75, paragraph Aforementioned case 27/ Paragraph 250. See also: ECJ, 5 October 1994, Crespelle v. Coopérative d Élevage et d Insémination Artificielle du Département de la Mayenne, case C-323/93 ECR 1994 p. I-05077; ECJ, 17 July 1997, GT-Link A/S v. DSB, case C-242/95, ECR 1997 p. I-04449; ECJ, 17 May 2001, TNT Traco SpA, C-340/99, ECR 2001 p. I-04109; ECJ, Ord, 25 March 2009, Isabella Scippacercola v. Commission, case C-159/08 P, ECR 2009 p. I See e.g., Motta and de Streel, Excessive Pricing in Competition Law: Never Say Never?. 23 See e.g., aforementioned case 27/76, paragraph Aforementioned article Excessive Pricing in Competition Law: Never Say Never? 25 ECJ, 13 July 1989, Ministère Public v. Jean-Louis Tournier, case 395/87, ECR 1989 p and ECJ, 13 July 1989, François Lucazeau and others v. SACEM and others, joined cases 110/88, 241/88 and 242/88, ECR 1989 p Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 45

4 17. Secondly, there are numerous uncertainties when it comes to assessing price unfairness. 18. Regarding unfairness in itself (price/economic value), there is little guidance on how economic value should be determined. Many precedents seem to identify it with production costs 26 even if in Port of Helsingborg 27, the costplus approach was rejected by the Commission because (i) the precise level of the production costs was uncertain, (ii) there was no information on a reasonable profit margin in the sector and (iii) non-cost related factors (e.g. valuation of the product on the demand-side) were not taken into account. 19. As for unfairness by comparison (price/competitive prices), the problem consists in finding a valid counterfactual. The test may imply a complicated comparison with (i) a substitutable product provided by competitors on the same relevant market, 28 (ii) other prices charged by the same dominant undertaking on a market different from the relevant market for the same product (British Leyland) 29 or (iii) prices charged by other undertakings providing similar products on other relevant markets (Bodson, 30 Tournier and Lucazeau 31 ). And these methods have drawbacks: the first and third may imply that competitive forces may erode the dominant position over time as market entry may be deemed possible 32 whilst the second method is difficult to justify from an economic efficiency perspective as price discrimination may have an economic rationale not related to exploitation, i.e., price differentiation. These methods also generally ignore that higher prices may correspond to a higher quality Where unfairness is deemed manifest, common sense seems to replace sophisticated tests. This is the case, where, for instance, a dominant operator is paid for services which it has not supplied 34 or where prices are set at a level in consideration of (illegitimate) motives (e.g., protection of 26 ECJ, 11 November 1986, British Leyland Public Limited Company v. Commission, case 226/84, ECR 1986 p EC Comm. Dec., 23 July 2004, Sundbusserne v. Port of Helsingborg, COMP/A.6.570/D3, paragraph ECJ, 29 February 1968, Parke, Davis and Co. v. Probel and others, case 24-67, ECR English special edition p Aforementioned case 226/84: Comparison between the fees charged by British Leyland for certificates of conformity for left-hand drive vehicles and those charged for right-hand drive vehicles. 30 ECJ, 4 May 1988, Corinne Bodson v. SA Pompes funèbres des régions libérées, case 30/87, ECR1988 p : Comparison between the prices charged by the concession right holder in a given French municipality and prices in other French municipalities where no special/exclusive rights applied. See also, ECJ, 8 June 1971, Deutsche Grammophon Gesellschaft mbh v. Metro-SB-Großmärkte GmbH & Co. KG, case 78-70, ECR 1971 p Aforementioned case 395/87 and joined cases 110/88, 241/88 and 242/88: Comparison between the royalties charged by a national copyright management society to discotheques with those charged in other Member States. 32 See e.g., Motta and de Streel, Excessive Pricing in Competition Law: Never say never?. 33 See e.g., Motta and de Streel, Excessive Pricing in Competition Law: Never say never?. 34 ECJ, 17 May 2001, TNT Traco SpA v. Poste Italiane SpA, case C-340/99, ECR 2001 p. I In this case of combined application of Articles 106 and 102 TFEU, the disputed legislation required express mail service providers to pay Poste Italiane postal dues equivalent to the postage charge normally payable by the latter s customers, without Poste Italiane being required to provide any actual service to those operators. other undertakings 35 or impediment of parallel imports 36 ), and not in consideration of the economic value of the products. It though remains unclear to which extent the standard of proof should be lower in those cases. 2.2.Unfair terms and conditions 21. With respect to unfair terms and conditions, pragmatism generally takes the form of different balancing tests between the legitimate interests at stake. 22. Amongst them can be mentioned the proportionality test. In United Brands, the discontinuance of supplies visà-vis a long-standing regular customer in retaliation for an advertising campaign for competitive branded bananas was deemed disproportionate and thus abusive. 37 Likewise, the ban on the sale of green bananas was deemed abusive as it went beyond the objective of quality. This test was also applied in DSD, 38 where the obligation placed on contracting parties to chose between introducing separate packaging and distribution channels or paying an unreasonable licence fee was deemed disproportionate. Another example is the AAMS case, where the inspections of imported cigarettes by AAMS allegedly aimed at ensuring compliance with the Italian tobacco legislation were abusive because disproportionate and needless Alternately, or in addition, the principle of reasonableness is used. In Tetra Pak I, the tied-sale clauses were deemed wholly unreasonable in the context of protecting public health and to go beyond the commercial interest of Tetra Pak. 40 The conduct was also exclusionary as it reinforced the customers economic dependence on Tetra Pak. 24. Another criterion is one-sidedness (or arbitrariness). In Alsatel, 41 the disputed contractual clauses allowed the dominant operator unilaterally to decide on a price increase which could potentially trigger an automatic renewal of the contract. Likewise, in Michelin II, 42 the discount system was condemned because it left the latter a considerable margin of discretion as to whether its customers might obtain the discount. In AAMS, the restrictions on the increase in the number of imported cigarettes were abusive because arbitrary and applied discretionarily by AAMS With respect to collecting societies which enjoy a de facto or de jure monopoly on the management of copyrights, 35 EC Comm. Dec. 82/861/EEC, 10 December 1982, British Telecommunications, case IV/29.877, OJ L 360, , p Aforementioned case 226/ Aforementioned case 27/76, paragraph EC Comm. Dec. 2001/463/EC, paragraph CFI, 22 November 2001, AAMS v. Commission, case T-139/98, ECR 2001 p. II-03413, paragraph CFI, 6 October 1994, Tetra Pak International SA v. Commission, case T-83/91, ECR 1994 p.ii-00755, paragraph ECJ, 5 October 1988, Alsatel v. SA Novasam, case 247/86, ECR 1988 p CFI, 30 September 2003, Manufacture française des pneumatiques Michelin v. Commission, case T-203/01, ECR 2003 p.ii See paragraph 70 of the Judgment. Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 46

5 unfair terms and conditions may constitute an abuse if they are not indispensable or excessive. 44 For instance, the ECJ ruled that compulsory assignment of all copyrights, both present and future, was abusive as it was not absolutely necessary for the protection of the rights and interests of the individual members and encroached unfairly upon their freedom to exercise their copyright Yet balancing tests are, by definition, relatively subjective and thus rather unclear from a practitioner s viewpoint Inefficiencies/Limitation of the products offered in the market 27. Inefficiencies and limitation of the products offered in the market constitute textbook cases of exploitative abuse. Yet, as with the other types of exploitative abuse, there are no simple criteria to assess unlawful conducts. The Commission has though specified that it only intervenes if there is clear and uncontroversial evidence that a very substantial share of the demand is being deprived of a product that it manifestly needs, showing once again its pragmatism Most of its interventions relate to State monopolies and thus imply the combined application of Articles 106 and 102 TFEU, i.e., BT 47 (limitation of technical development in respect of UK message-forwarding by the national telecom operator), Port of Genoa 48 (limitation of technical development relating to dock-work by an exclusive right holder), Höfner and Elser 49 (inefficiency and undue limitation of the services available on the market for employment procurement activities attributable to the public agency). Yet, there is at least one case which did not involve a State monopoly: the P&I case 50, where the Commission considered that by offering a single insurance product that left a very substantial share of the demand unsatisfied, an association of mutual non-profit-making associations exploited its dominant position Discrimination 29. In line with the Commission s statement that it would enforce exploitative abuse where the protection of consumers and the proper functioning of the internal market cannot otherwise be adequately ensured, 51 exploitative discrimination 44 EC Comm. Dec. 82/204/EEC, 4 December 1981, GEMA statutes, case IV/29.971, OJ L 94, , p , paragraph ECJ, 27 March 1974, Belgische Radio en Televisie v. SV Sabam and NV Fonior (BRT-II), case , ECR 1974 p EC Comm. Dec. 1999/329/EC, 12 April 1999, P & I Clubs, IGA/P & I Clubs, Pooling Agreement, paragraph 128, case IV/D-1/30.373/case IV/D-1/37.143, OJ L 125, , p Aforementioned EC Comm. Dec. 82/861/EEC. 48 ECJ, 10 December 1991, Merci convenzionali porto di Genova SpA v. Siderurgica Gabrielli SpA, case C-179/90, ECR 1991 p. I ECJ, 23 April 1991, Klaus Höfner and Fritz Elser v. Macrotron GmbH, case C-41/90, ECR 1991 p.i This reasoning was also followed in ECJ, 12 September 2000, Pavel Pavlov v. Stichting Pensioenfonds Medische Specialisten, joined cases C-180/98 to C-184/98, ECR 2000 p. I EC Comm. Dec. 1999/329/EC. 51 Paragraph 7 of the 82 EC Guidelines. cases often involve internal market issues, e.g., AAMS (discriminatory measures in favour of domestic cigarettes), Football World Cup 52 (discriminatory practices in favour of French residents in respect of the sale of entry tickets for World Cup finals matches), Corsica Ferries 53 (discriminatory tariffs in favour of transport companies operating between two national ports), GVL case 54 (discriminatory refusal of a copyright management company either to conclude management contracts with artists who were neither German nationals nor resident in Germany or to protect their rights in Germany). 30. Exploitative discrimination captures both discrimination between suppliers or customers and direct discrimination between final consumers (seldom applied). 31. The former type of abusive conduct covers commercial conducts adopted by a dominant operator which may distort competition on an upstream or a downstream market. In this respect, the Court and the Commission usually apply a twostage test (not specific to exploitative discrimination 55 ), which requires demonstration of (i) the application of dissimilar conditions to equivalent situations/transactions and of (ii) a competitive disadvantage 56 (which does not need to be an actual quantifiable deterioration in the competition position of the business partners taken individually 57 ). Only legitimate business considerations can justify different treatment of business partners by the dominant undertaking. This test was applied for instance in British Airways 58 (discriminatory goal-related discounts or bonuses between travel agents), in Aéroports de Paris (discriminatory commercial fees between suppliers or users of ground handling services in airports and between users providing competing air transport services from Paris 59 ) and in BT 60 (discriminatory restrictions imposed on message-forwarding agencies). 32. The other type of exploitative discrimination concerns discrimination between final consumers. For instance, in the Football World Cup decision, the CFO was condemned for applying discriminatory conditions for the sale to the general public of entry tickets for World Cup finals matches in favour of French residents. This latter category is questionable as (i) 52 EC Comm. Dec. 2000/12/EC, 20 July 1999, Football World Cup 1998, case IV/36.888, OJ L 5, , p ECJ, 17 May 1994, Corsica Ferries Italia Srl v. Corpo dei Piloti del Porto di Genova, case C-18/93, ECR 1994 p. I ECJ, 2 March 1983, GVL v. Commission, case 7/82, ECR 1983 p E.g., EC Comm. Dec., 2 June 2004, Clearstream (Clearing and Settlement), case COMP/38.096, upheld by CFI, 9 September 2009, Clearstream Banking AG and Clearstream International SA v. Commission, case T-301/04, ECR 2009 p. II In this case, the underlying motive for the implementation of the discriminatory refusal to access and price was that the discriminated customer was a direct competitor of a sister company of the dominant operator in the downstream market. 56 E.g., Aforementioned case C-95/04 P, paragraphs 135 and E.g., Aforementioned case C-95/04 P, paragraph E.g., ECJ, 15 March 2007, British Airways plc v. Commission, case C-95/04 P, ECR 2007 p. I EC Comm. Dec. 98/513/EC, 11 June 1998, Alpha Flight Services/Aéroports de Paris, case IV/35.613, OJ L 230, , p , upheld by CFI, 12 December 2000, ADP v. Commission, case T-128/98, ECR 2000 p. II-03929, and by ECJ, 24 October 2002, ADP v. Commission, case C-82/01 P, ECR 2002 p. I EC Comm. Dec. 82/861/EEC. Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 47

6 there may be legitimate reasons for discriminating between final consumers, (ii) an infringement may be characterised even if the dominant undertaking does not have any financial or competitive advantage as a result thereof and (iii) it may encroach on Consumer Law. II. Moving forward? 33. Living with the paradox may thus seem appealing. But some signals, including the most recent case law, may augur a revival of exploitative abuse or at least make it worth raising the question. 1. Signals of a new deal? 34. Firstly, the recent exploitative abuse case-law and proceedings remind us that this type of abuse is still being enforced by European Competition Authorities. 61 Interestingly, in Google, the FCA firmly rejected Google s contention that exploitative discrimination was not covered by competition law 62 and issued, following to this case, an opinion on the functioning of competition in the online search advertising sector, 63 in which it ascertains that it will if need be enforce both exclusionary and exploitative abuses against search engines These cases may also indicate a window of opportunity for exploitative abuse in the presence of manifestly discriminatory or unfair conducts as, in such cases, the usual practical difficulties are relatively alleviated. 36. For instance, Google was criticised for implementing an insufficiently clear AdWords online search advertising content and suspension policy and for applying it in a discriminatory manner to the detriment of Navx, a French supplier of traffic radar detectors: (i) GPS manufacturers could promote the supply of radar databases on their website without being excluded from the AdWords service whilst Navx could not and (ii) contrary to Navx, some advertisers were duly informed of the conditions of the AdWords content policy and interpretation thereof. This was enough for the FCA to find prima facie exploitative abuse In Grüne Punkt 66, the demonstration of unfair prices and unfair trading conditions attributed to DSD, the dominant 61 The NCAs have also though sparingly continuously applied exploitative abuse, including in the most recent period, e.g., Competition Commission Appeal Tribunal, 15 January 2002, Napp Pharmaceutical Holdings Limited and Subsidiaries v. Director General of Fair Trading, upholding the OFT decision n CA98/2/2001, 30 March 2001 (excessive prices charged by Napp to UK customers for morphine tablets and capsules in the UK); Autorità garante della concorrenza e del mercato -AGCM), 23 October 2008, case A376, Provvedimento n 19020, Aereoporti di Roma-Tariffe Aereoportuali, Bollettino n 40/2008. See on this case, Michele Giannino, The Italian Competition Authority fines an airport for excessive prices and margin squeeze practices for access to certain airport facilities (Aeroporti di Roma), e-competition n Paragraph 185 of the FCA Dec. n 10-MC FCA Opinion n 10-A-29, 14 December 2010, on the functioning of online advertising. 64 See paragraphs 297 and 298, 331 and seq. and FCA Dec. n 10-MC case T-151/01 confirmed by case C-385/07. operator on the German market for systems which exempt undertakings from their take-back and recovery obligations in respect of sales packaging,did not appear to raise significant difficulties either. The findings were based on the observation that DSD required payment of a fee for the total quantity of packaging bearing the Grüne Punkt logo, even though evidence was provided that the manufacturer or distributor did not use the DSD system or only for some of their products. 38. Secondly, the exploitative abuse offence is now seen as useful for markets where standard-setting plays a significant role, as stressed by the Commission s new guidelines on horizontal co-operation agreements Section 7 of the guidelines refers explicitly to exploitative fees in the context of standard-setting. 68 Acknowledging that [i]n principle, cost-based methods are not well adapted because of the difficulty in assessing the costs attributable to the development of a particular patent or groups of patents, 69 it suggests alternative methods: (i) comparison of the disputed licensing fees with the fees charged by the undertaking in question for the relevant patents in a competitive environment before the industry has been locked into the standard and (ii) recourse to an independent expert assessment of the relevant IPR portfolio s objective quality and centrality to the standard at issue and/or relying on previous unilateral ex ante disclosures of most restrictive licensing terms. 40. These developments follow the Rambus case 70 where, Rambus, the dominant operator on the worldwide technology market for DRAM interface technology, was suspected of having engaged in intentional deceptive conduct in the context of the standard-setting process by not disclosing the existence of the patents and patent applications which it later claimed were relevant to the adopted standard and for the use of which it claimed royalties from JEDECcompliant DRAM manufacturers ( patent ambush ). For the Commission, these royalties were thus set-up at a level which, in the absence of its allegedly intentional deceptive conduct, Rambus would not have been able to charge. 41. Thirdly, by encouraging private enforcement, the Commission indirectly paves the way for an increased number of consumer complaints based on exploitative abuse. Indeed, which kind of offences will be used by consumer groups, once the future group actions envisaged by the Commission will enter into force? Certainly, consumer groups will target cartel members, most probably after issuance of cartel convictions. But the most attractive offence for a direct action, i.e., without prior authorities intervention, will likely be exploitative abuse: Consumers main concerns are high prices and targeting a (at least apparently) dominant company will be much easier than finding out that a cartel or a vertical restraint exist. 67 Communication from the Commission - Guidelines on the applicability of Article 101 TFEU to horizontal co-operation agreements C(2010) 9274/2 (adopted on December 14, 2010, not yet published in the EUOJ). 68 See paragraphs 284 and seqq. of the Guidelines. 69 See paragraph 289 of the Guidelines. 70 EC Comm. Dec., 9 December 2009, Rambus, case COMP/ Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 48

7 42. Lastly, exploitative abuse has proved to be an efficient means of filling the gaps in relation to internal market issues where they cannot otherwise be adequately dealt with, e.g., the Football World Cup decision. 2. Mere illusions of a revival? 43.With the exception of standard-setting related exploitative abuses, it is, however, difficult to infer new trends from these recent cases as they are highly consistent with precedents and thus offer little clarification. 44. First of all, they all relate to (near-) monopolistic markets with high entry barriers and little chance of competition development in the foreseeable future, which seems to be a prerequisite for exploitative abuse. 45. In Google, 71 the FCA took the preliminary view that the relevant market was the national search online advertising market characterised by high entry barriers and the absence of credible threat against Google s dominant position (with a market share of %). In Grüne Punkt, DSD was found to hold a dominant position on the German market for the organisation of the take-back and recovery from private final consumers of used sales packaging with a market share of at least 82%. According to the Commission, this market is affected by considerable barriers to market entry and that it was realistic to assume that DSD will remain the sole system to operate nationwide for the foreseeable future. 72 In Kanal 5, 73 STIM, a Swedish copyright management organisation, was deemed to enjoy a de facto monopoly in Sweden over the market for making available copyright-protected music for television broadcast. In Rambus, 74 the relevant market was the global technology market for DRAM interface technology, characterised by substantial barriers to entry on the market, mainly due to the fact that the industry is locked in to JEDEC (a US-based standard setting organisation) standards. Rambus, as the only company asserting patents on DRAM interface technology, was provisionally found to be dominant on this market at the point when it started asserting its patents. In the Standard & Poor s proceedings, the Commission provisionally considers the market for the issuance of US International Securities Identification Numbers (ISINs) where Standard & Poor s, which is the sole-appointed National Numbering Agency for US securities and therefore only issuer and firsthand disseminator of ISINs, would enjoy a monopoly. 46. Moreover, as in most precedents, the direct victims of the practices concerned are companies, not final consumers. However, some decisions try quite laboriously to establish a link with consumer harm. For instance, in Google, the alleged competition distortions arising from the discriminatory conduct could result in price increases, a slower innovation and a decrease in the downloadable data, detrimental to final consumers FCA Dec. n 10-MC Paragraph 96 of EC Comm. Dec. 2001/463/EC. 73 Case C-52/ Case COMP/ Paragraph 244 of the FCA Dec. n 10-MC In addition, the tests either do not depart from the precedents or add even more confusion. 48. In Google, the FCA explicitly refers to the Football World Cup decision to reaffirm that the circumstance that the dominant operator does not have any commercial interest on the affected market is irrelevant. Yet, contrary to the traditional two-condition discrimination test, the FCA only examines the lack of objectivity and transparency of Google s AdWords policy concerning radar database suppliers and the discriminatory treatments between the former and GPS manufacturers but falls short of substantiating the equivalent transactions between them. 49. The Kanal 5 judgment does not depart from the twocondition test. The test covered whether STIM applied different royalties to commercial or public broadcasting companies and placed them as a result at a competitive disadvantage, and whether such practice could be objectively justified. With respect to the question of the abusive character of the calculation method of the royalties levied by STIM, 76 the Court, in line with United Brands, considered it necessary to determine whether the royalties were reasonable in relation to the economic value of the service provided by STIM. In doing so, it struck a balance between the interests of composers of music protected by copyright and those of the television broadcasting companies. On this basis, it decided that the remuneration model did not in itself constitute an abuse, unless other methods might be capable of attaining the protection of the interests of composers of music without thereby increasing the costs of managing contracts and monitoring the use of protected musical works. 50. In Grüne Punkt, 77 the Court of First Instance followed the approach adopted in the United Brands and British Leyland cases. 51. In the pending proceedings against Standard & Poor s 78 relating to alleged excessive licensing fees charged to financial institutions and information service providers for the use of International Securities Identification Numbers (ISINs), the Commission seems to have followed the Bodson and Grüne Punkt approaches. Its preliminary conclusions are based on (i) a comparison with the charging policy of other National Numbering Agencies (Bodson) and (ii) the fact that S&P does not incur any costs for the distribution of US ISINs (Grüne Punkt). 52. Insofar as they are much in line with precedents, the recent cases and proceedings can only be exposed to the same criticisms. One may regret that the Competition Authorities and the Courts did not seize the opportunity, if not to revamp the concept, at least to clarify it. 76 i.e., the amount of the royalties corresponds partly to the revenue of the broadcasting channels. 77 Case T-151/01 confirmed by case C-385/ Case COMP/D2/ Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 49

8 III. Revamping the enforcement of exploitative abuse 53. The present situation is far from satisfactory. 54. Authorities must deal with a tool which is extremely difficult to use. Consumers find that most of the time the Authorities do not pay enough attention to the abuses from which they suffer. Companies cannot, nevertheless, ignore exploitative abuses, though the risk is very low. Their counsel can hardly predict the circumstances under which the risk may materialise, not to mention the precise methodology used to prove a wrongdoing. 55. This could be read as an invitation to simply abandon the implementation of the exploitative abuse prohibition but, even if rarely, the Authorities are actually using the concept, which is consistent with consumer welfare being their ultimate goal. As pointed out by some US economists, there is little evidence that the much more frequently used other instruments of competition law enforcement benefit to consumers or significantly deter anticompetitive behaviour. 79 Indeed, penalty decisions very rarely estimate consumer harm, which may add fuel to criticisms that EU competition law protects competitors and not competition; 80 evidence that punishing exclusion abuses has actually triggered competition in concentrated markets is scarce. Besides, as explained above, the growing focus on private enforcement may likely lead to an increasing number of exploitative cases; even if the very notion is criticised by economists, there is no legal way to prevent people from using it before national courts, since the prohibition is set forth in the Treaty. All this leads to the primary conclusion that exploitative abuse is here to stay. 56. It thus appears indispensable to improve enforcement, and to do it before national courts become overwhelmed by too many weak or even dangerous exploitative abuse cases. What can be done? 57. The first answer which may spontaneously come to mind is to improve the existing tests, in order to enhance predictability. The usual pragmatism of the Authorities renders this improvement unlikely and, in any event, it would not remove the objections to price regulation. 58. Against this background, there is a strong incentive to fine-tune the scope of exploitative abuse. Many valuable articles have been written on the subject, almost all suggesting to restrict the enforcement of excessive pricing to candidate markets. 59. For Motta and de Streel, 81 the candidate markets could be those having the following features: (a) high and 79 E.g., Donald Dewey, The Antitrust Experiment in America, New York, Columbia University Press, 1990; Robert W. Crandall and Clifford Winston, Does Antitrust Policy Improve Consumer Welfare? Assessing the Evidence, Journal of Economic Perspectives, Volume 17, Number 4, Fall 2003, p E.g., references to American critics against the European Commission following the GE/ Honeywell merger by Eleanor M. Fox, We Protect Competition, You Protect Competition, World Competition 26(2): (2003). 81 Aforementioned article Excessive pricing in competition law: Never Say Never?. non-transitory entry barriers, (b) a monopolistic or nearmonopolistic situation resulting from (current or past) exclusive or special rights, (c) no effective way for the competition authority to eliminate the entry barriers and (d) no sector-specific regulator. 60. Evans and Padilla 82 offered other criteria: (a) a nearmonopolistic position, (b) the dominant firm s prices widely exceed its average total costs, (c) there is a risk that those prices prevent the emergence of new goods and services in adjacent markets. 61. Another suggestion was made jointly by O Donoghue and Padilla: 83 limit enforcement against excessive pricing to markets (a) protected by high barriers to entry, (b) where one firm enjoys considerable market power and (c) investment and innovation play a relatively minor role. 62. For Röller, Competition Authorities intervention against excessive pricing may be justified, provided that (a) there are significant entry barriers, (b) self-correction of the market is unlikely, (c) no structural remedy is available, (d) there is no regulator or a regulatory failure, and (e) it is a response to gap cases where dominance is a result of exclusionary conduct or Government actions Fletcher and Jardine suggest that Competition Authorities (a) must limit their intervention to situations where there is no possibility of successful new entry within a reasonable period (it being understood that they would not intervene during the patent period), (b) consider carefully the pricing and competition in the other markets of the dominant firm s portfolio and the effect of any ex post intervention on ex ante investment incentives Lastly, Paulis 86 has proposed to limit Competition Authorities intervention in markets where there are very high and long standing barriers to entry or expansion. 65. Whatever the methodology chosen, this approach is appealing: companies which meet the candidate market conditions will be aware of the risks; other companies will be safe. But, would the candidate markets, which appear like old-fashioned State monopolies, be the ones which matter most from a consumer perspective? This approach could thus accentuate the paradox, especially when one considers the alternatives. 66. For instance, is it acceptable to renounce enforcing exploitative abuses in innovation/technology-driven markets 82 Aforementioned article Excessive Prices: Using Economics to Define Administrable Legal Rules. 83 Robert O Donoghue and Jorge Padilla, The Law and Economics of Article 82 EC, Hart Publishing, Lars-Hendrik, Exploitative abuse, European competition law annual 2007: A reformed approach to article 82 EC, ed. Claus Dieter Ehlermann, Mel Marquis, Oxford: Hart Publishing. 85 Amelia Fletcher and Alina Jardine, Towards an Appropriate Policy for Excessive Pricing, European competition law annual 2007: A reformed approach to article 82 EC, ed. Claus Dieter Ehlermann, Mel Marquis, Oxford: Hart Publishing. 86 Emil Paulis, Article 82 EC and exploitative conduct, European competition law annual 2007: A reformed approach to article 82 EC, ed. Claus Dieter Ehlermann, Mel Marquis, Oxford: Hart Publishing. Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 50

9 (including pharmaceutical and high-tech markets)? Certainly, according to conventional wisdom, excessive pricing should not be enforced in technological markets because high prices, and hence high profits, are necessary to reward innovation. But, does this incentive justification really mean that any profit, whatever its level, is acceptable, implying that a price can never be excessive? A more reasonable approach should be that even if prices must be higher than usual in order to reward innovation, they still can be abusive above a certain level: There would be some room for fighting abusive prices in technological markets, even if figuring out the relevant test will probably be very difficult. 67. And if one wants the enforcement to address markets that really matter for consumers, why should exploitative abuses by collective dominant companies not be considered as well? If the Commission behaviour in merger cases is to be believed, collusive oligopolies are (or are at risk of being) rather frequent. But if one puts aside the rare decisions that relate to old-fashioned collective dominance (companies structurally linked like maritime conferences) there has been so far not a single guilty-verdict for abuse of collective dominance. It is true that one cannot understand how members of a collusive oligopoly may engage into exclusive abuses: but this simply means that exploitative abuse is the only existing tool to remedy consumer harm resulting from the supra-competitive price practiced by collusive oligopolists. Admittedly, the instructions for use of this tool are far from obvious since the price merely results from their (long-term) rational behaviour, but isn t this question worth receiving at least some attention? 68. Another, and controversial, answer may consist in killing the excessive pricing offence, and restricting exploitative abuse to manifest unfairness or discrimination, which would have at least three advantages: it would ensure convergence with the US, where excessive pricing does not constitute an antitrust offence, 87 it being noted that convergence seems to be an important priority for Commissioner Almunia; 88 it would hush-up the serious objections relating to price regulation by Competition Authorities; it would not prevent intervention in innovation/technologydriven markets whilst avoiding the main pitfall of enforcing exploitative abuses in such markets, which is deterring innovation. 69. Yet, it would only partly solve the paradox as the main harm to consumer, high prices, would become impossible to challenge directly. 70. Re-thinking enforcement methodology could be another direction worth exploring. It would require to address the following issues: Is it relevant to punish an offence which is 87 E.g., Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979), paragraph 141. See also: Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP (02-682) 540 U.S. 398 (2004) F.3d 89 (Opinion of the Court delivered by Justice Scalia). 88 See Joaquín Almunia Vice President of the European Commission responsible for Competition Policy, Converging paths in unilateral conduct ICN Unilateral Conduct Worshop Brussels, 3 December 2010 (SPEECH/10/722). almost impossible for companies to self-assess in the absence of any clear test? And how do you remedy such offence? How to avoid transforming Competition Authorities into priceregulators? 71. With respect to the latter, valuable suggestions can be found in the literature. For instance, Fletcher and Jardine 89 advocate remedies designed to address demand side problems and thereby to activate competition in the market, i.e., measures to facilitate switching (e.g., cancellation rights, improved ease/speed of switching) or overcome asymmetric information problems (e.g., codes of practice, minimum quality standards). Alternately, Authorities could call for commitments. 72. Which approach could be favoured? The Authors advocate a new twofold policy. On the one hand, priority shall be given to re-think enforcement of exploitative abuse by renouncing to punish companies ex post: enforcement should be limited to impose remedies. However, Authorities should refrain as much as possible from regulating prices and chose instead, at least when possible, indirect remedies. On the other hand, predictability should rest on a candidate market approach. A candidate market should be any kind of dominated market (even technological or collectively dominated markets) for which there is no hope in the medium term that, spontaneously or through exclusive abuse enforcement, an active competition will be restored. To strictly limit the use of the exploitative abuse, a manifestness criterion should be used when deciding that a market is dominated and has no chance of becoming competitive. A candidate market approach could also use innovative techniques. For instance, the Authorities could inform in advance a company that it dominates a candidate market, which would give it a chance to avoid exploitative abuses by mere self-restraint; enforcement should only come later if necessary. This would be a good safeguard against the possibly pernicious effects of a revival of exploitative abuse in the context of private enforcement: of course, to achieve that goal, the Commission should not only limit and revamp its own enforcement policy but also maybe include it in a regulation, in order to limit the national courts actions to pre-defined candidate markets. 73. Whatever the solution, Competition Authorities would be wrong to remain passive. Tim Wu very recently published one of the most ambitious charge against Monopolies in technological markets, in which he argues that the harm they inflict to people goes beyond prices and is triggered by more than mere appetite for profit; interestingly, he does not believe that antitrust is the solution and calls for totally different remedies. 90 n 89 Aforementioned article Towards an Appropriate Policy for Excessive Pricing. 90 Tim Wu, The Master Switch: The Rise and Fall of Information Empires, New York: Knopf, Concurrences N I Doctrines I - P. Hubert & M.L. Combet, Exploitative abuse: The end of the Paradox? 51

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