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Research Project: Price-based Exclusionary Conduct in the Light of the More Economic Approach

Interdisciplinary research project

For almost ten years European competition policy is subject to a reform towards a more economic approach of European competition law. The Würzburg based research group aims to follow this process both critically and constructively. Research subjects are all forms of price-based exclusionary conduct: predatory pricing, price discrimination, fidelity rebates, tying and bundling, margin-squeeze and best price strategies. These are also subject of the “Guidance on the Commission´s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings“, which was published by the Commission in 2009. In particular, the Commission will apply a so called “equally efficient competitor test” to determine abusive conduct. The members of the research group not only try to determine abusive conduct, but also examine the legal consequences as well as remedies. Further subjects are the private enforcement of cases of price abuse and the consideration of price-based abusive conduct in merger control.

Goals of the research group are as follows: in a first step there will be a critical analysis of the Commission´s reform efforts, three years after the publication of the Guidance paper and almost eight years after the release of the preparatory Discussion paper. One question is, whether the Commission follows its own guidance in its recent decisions. Second, do the Courts of the European Union follow the Commission´s more economic approach? Furthermore, the influences of the Commission´s competition policy on the antitrust practice of the Member States shall be examined, particularly as regards Germany. In a second step the research group will develop structured rules of reason to plausibly determine abusive conduct. The aim is to reach a more feasible determination of abusive price behaviour in practice, while having highly rational decisions at the same time. In this way the research group´s results shall contribute to lessen legal uncertainty and to increase efficiency in competition law application.