시장지배적 지위의 남용 금지에 관한 유럽연합의 최근 동향 - 유럽위원회의 지침서(Guidance Paper)를 중심으로 -

The Guidance Paper on the application of Article 82 EC Treaty to exclusionary abuses of a dominant position (the “Article 82 EC Guidance Paper”), which was published on 3 December 2008 by the European Commission (“Commission”), was formally adopted on 9 February 2009. The Commission says that the Guidance Paper will introduce a more “effects-based approach” to Article 82 EC, which means “protecting competition and consumer welfare, not individual competitors who do not deliver to consumers”. The Guidance Paper outlines the analytical framework to assess certain forms of exclusionary conduct (such as exclusive dealing, rebates, tying and bundling, predatory pricing, refusal to supply and margin squeeze). It is not binding on the Commission and the national competition authorities, in particular the national courts. The Guidance Paper largely draws from recent high-profile cases, such as British Airways (exclusive dealing and rebates), Microsoft (refusal to deal and tying), Wanadoo (predatory pricing), and Deutsche Telekom (margin squeeze). It contains a few novel issues, which will have to be tested against the facts of each case. However, overall the Guidance Paper is a missed opportunity, because – if compared with the Commission’s guidelines on the application of Article 81 EC – it contains little practical guidance for dominant companies as to what they can do without infringing Article 82 EC. The intention is that the approach to Article 82 EC cases should be more “effects-based” and less formalistic. Whether or not the Commission will adopt a more consumer welfare-oriented competition policy and will continue with its process-oriented approach is something that only time will tell.