Rethinking Exclusionary Abuses in EC Competition Law

This book offers an original interpretation of the case law on exclusionary abuses under Article 82 EC (now Article 102 TFEU, according to the numbering introduced by the Treaty of Lisbon), and it identifies the various factors that have shaped the application of this provision through its history. The book provides an in-depth analysis of the European Commission's Guidance on enforcement priorities under Article 82 and it makes a provocative proposal for further modernisation of the analysis of exclusionary abuses by recasting the prohibition of abuse of dominance as a norm which deals only with unilateral conduct.The first part of the book reconsiders fundamental legal and economic concepts underpinning the assessment of exclusionary abuses and identifies the difficulties posed by the principal forms of abusive practices (refusals to deal, predatory pricing, rebates and tying). The EU case law is compared with the US experience under Section 2 of the Sherman Act. The second part of the book explores solutions, based on the premise that the reform of Article 82 (now Article 102 TFEU) should be in line with the modernisation of Article 81 (now Article 101 TFEU) and the EU merger control rules. The last chapter demonstrates the gradual convergence of the application of Articles 81 and 82 in the area of vertical restraints. It points towards a redefined division of labour between these two provisions with a view to ensuring efficient enforcement, better protection of consumer interests, and clearer incentives for dominant firms to invest in desirable commercial practices. The book will be of interest to students and practitioners of EU competition law, and to those in other jurisdictions where the application of competition law to practices of dominant firms is controversial. ...Ekaterina Rousseva's book offers a stimulating and critical analysis of Article 102 TFEU and constitutes a valuable contribution to the literature.Ioannis LianosWorld Competition Law and Economics Review34(4)...this carefully researched monograph...makes an original and ambitious contribution to the ongoing debate on the reform of art. 102 TFEU. Although its message is primarily addressed to policy-makers, it constitutes a thought-provoking read for anyone interested in the modernisation of EU competition law.Anne C. WittEuropean Law ReviewVolume 36, August 2011Rousseva is an able guide through the heaps of information that have been amassed on the subject in the last few decades. A particular treat is the ease with which Rousseva hops from practice to theory and back while discussing a topic. She does so almost without the reader noticing it. In a field like exclusionary abuses, this is an important asset.Rousseva's examination of EU case law is first rate. Her analysis is in-depth and comprehensive.Rousseva's coverage of the topic in terms of scope and depth is first rate. The book is a must for anyone interested in exclusionary abuses in EU competition law.Tjarda van der VijverEuropean Competition Law ReviewVolume 32, Issue 6Ms Rousseva's take on Art 102 TFEU is largely an original one. When writing on a topic and in an atmosphere where the path of least resistance is an ever present temptation, this is a remarkable achievement. A book to own.Eric Gippini FournierCompetition Law Journal2010The reader finds a very useful, comprehensive and essentially up-to-date overview and analysis of exclusionary abuses under Article 102 TFEU. Overall, Rousseva shows exceptional insight into the functioning and application of Article 102 which she undoubtedly acquired through her work at DG Competition. Altogether, this book constitutes a timely and stimulating contribution to the ongoing debate on modernization of Article 102 TFEU.Thomas M.J. Mollers and Sabrina HailerCommon Market Law ReviewVolume 48, Issue 1Ms Roussevas take on Art 102 TFEU is largely an original one. When writing on a topic and in an atmosphere where the path of least resistance is an ever present temptation, this is a remarkable achievement. A book to own.Eric Gippini FournierCompetition Law Journal2010PART 1: THE CASE LAWON EXCLUSIONARY ABUSES: EVOLUTION ANDPROBLEMS 71. Article 82: Drafting History, Ideologies and Major Players in the Process of itsDevelopment 9Introduction 91. The Road to Article 82 EC: Possible Sources of Inspiration for the Adoptionof the Text of Article 82 101.1. The Influence of the Cultural Inheritance: Attitudes towards RestrictivePractices and Market Power in Europe 101.1.1. European Attitude towards Power 111.1.2. European Pre-war Legislation 111.2. European Competition Rules in the Context of Economic Integration andEconomic Growth 121.2.1. Post-war European Legislation 131.2.2. The Competition Law Provisions in the ECSC Treaty 131.2.3. The Drafting History of Article 82 151.3. Why Section 2 of the Sherman Act was not used as a Prototype forArticle 82 181.4. Article 82A Product of Different Influences 202. An Overview of the Text of Article 82 and its Connection with Other Rulesof the EC Competition Law System 202.1. The Text of Article 82 202.2. Article 82 and Other Competition Rules 212.2.1. Article 81 and Article 82 212.2.2. Article 82 and Article 86 232.2.3. Article 82 and the Merger Regulation 243. Sources of Inspiration, and Factors determining the Policy under Article 82 263.1. The Role of the European and American Economic Schools of Thought 263.1.1. The Ordoliberal School of Thought 263.1.2. Harvard School of Thought (Industrial Organisation) 323.1.3. The Ordoliberal and Harvard Schools: Different Roads toCommon Values 373.1.4. The Chicago School 383.1.5. The Post-Chicago School 413.1.6. The Meaning of 'Consumer Welfare' according to the DifferentSchools of Thought 453.1.7. The Overall Impact of the above Schools of Thought on theDevelopment of Article 82 483.2. The Influence of American Jurisprudence 484. Different Players in the Development of Article 82 494.1. The Role of the Commission 494.1.1. The Institutional Independence of the Commission as aPolicy-maker 494.1.2. The Dominant Culture and Ideology of DG Competition in theFirst Decades 514.1.3. A Shift towards an Economics-based Approach 514.2. The Role of the Community Courts 524.2.1. The Powers of the Community Courts in shaping EuropeanCompetition Policy 524.2.2. Interpretative Methodology applied by the Community Courts 534.2.3. Advocates General 544.3. Scholars 55Conclusion 572. Seminal Case Law and Seminal Concepts 59Introduction 591. The Continental Can Case 601.1. The Interpretative Method of the Court of Justice 611.1.1. Article 82 in relation to the Objectives of the Treaty 611.1.2. The Relationship between Article 82 and Article 81 611.1.3. Arguments elicited from the Text of the Provision 621.1.4. Similarity with the Approach followed by the US SupremeCourt in the Standard Oil Case 621.2. The Court's Understanding of Competitive Harm 631.3. Other Important Characteristics of the Notion of Abuse 631.3.1. No Fault is Necessary 631.3.2. Dominance does not itself need to be the Means for the Abuse 632. United Brands and the Concept of Dominance 643. The Definition of 'Exclusionary Abuse' in the Hoffmann-La Roche Case 673.1. Normal Competition 683.2. The Effect Element 683.3. The Discouraging US Experience 694. Michelin IThe Notion of Special Responsibility 715. Connection between Dominance and Abuse 735.1. The Court's Position in Continental Can and Hoffmann-La Roche 735.2. Possible Links between Dominance and Abuse 745.3. Examples of Links between Dominance and Abuse 755.3.1. Dominance as a Condition for the Conduct to take Place 755.3.2. Dominance as a Condition for a Negative Effect on Competition 765.3.3. Dominance as a Condition for a Worsening Effect onCompetition 775.4. The Practical Implications of Knowing the Links between Dominance andAbuse 78Conclusion 793. Refusals to Deal 81Introduction 811. The Community Courts' Approach 831.1. The Early Case Law: Protecting Individuals' Economic Freedom 831.1.1. The Commercial Solvents Case 831.1.2. United Brands Co v Commission 851.1.3. BP v Commission 871.1.4. The Common Features of the Early Case Law 871.2. Transition from Protecting Economic Freedom of Individuals toProtecting Competition 881.2.1. Telemarketing: The two Markets Rationale and the Notion ofIndispensability 891.2.2. Volvo v Veng and the Freedom of an Intellectual PropertyOwner to Refuse to License 901.2.3. The Commonality between Volvo v Veng and Telemarketing 911.3. The Test for Abusive Refusals to Deal in the Recent Case Law 911.3.1. The Magill caseRefusal to License IP Rights Abusive only inExceptional Circumstances 921.3.2. The Ladbroke case: Failed Allegations of Abuse 941.3.3. The Oscar Bronner Test 951.3.4. The IMS Health Case 961.4. The Microsoft Case: Progress or Retreat? 1001.4.1. Some Preliminary Notes 1001.4.2. The Commission's Novel Approach 1011.4.3. The CFI's Reaction to the Novelties: Is there a Change in theTest for Abusive Refusal to License IP Rights? 1021.4.4. The CFI's Understanding of the Condition of Indispensability 1041.4.5. The Condition of Elimination of Competition 1061.4.6. The 'Preventing the Launch of a New Product' Condition 1091.4.7. The Absence of an Objective Justification 1101.5. General Observations about the Historical Development of the Case Law 1112. The Problems with the Current Test for Abuse 1132.1. The Problem with the Condition of 'Indispensability' 1132.1.1. Indispensability Considered Satisfied on the Basis of a NarrowMarket Definition 1142.1.2. The Overlap between the Oscar Bronner two-tier Test forIndispensability and the Demand/Supply-side SubstitutabilityTest for defining Relevant Markets 1142.1.3. IMS Health: Explicit Acknowledgement of the Overlap betweenthe Test for Substitutability in defining Relevant Markets and theTest for Indispensability 1182.1.4. Indispensability Determines the Existence of Hypothetical Markets 1202.1.5. Interoperability Information 1212.1.6. Final Observations regarding the Indispensability Condition 1212.2. Exclusion of Competition in the Secondary Market 1222.3. Problems with the 'New Product' Requirement 1222.3.1. Two Different Ways to interpret the 'New Product' Criterion 1222.3.2. The Failure of the Current Test to catch Prevention ofDevelopment of New Markets 1242.3.3. The Insurmountable Difficulty of elaborating a 'New Product'Criterion 1252.3.4. Should Refusals to License IP Rights and Refusals to Deal beTreated Differently? 1282.4. Objective Justification 131Conclusion 1314. Predatory Pricing 133Introduction 1331. Theories and Economic Models 1361.1. The AreedaTurner Single Cost-Based Rule 1361.2. Criticism of the AreedaTurner Rule and Alternative Proposals 1371.2.1. Simple Non-Cost Based Tests 1371.2.2. Combination of Cost-Based and Additional Factors Tests 1381.3. The Radical Chicago School Approach 1391.4. Post-Chicago Revelations 1401.4.1. Financial Predation 1411.4.2. Cost Signalling 1421.4.3. Reputation Effects 1421.4.4. Criticisms of the Post-Chicago Models 1432. The US Jurisprudence in a Nutshell 1442.1. A Modified AreedaTurner Rule 1452.2. Matsushita 1452.3. Establishing the Recoupment Condition in Brooke Group 1462.4. Expansion of the Recoupment Condition to Price Bidding inWeyerhaeuser Co v Ross-Simmons Hard-Wood Lumber Co Inc 1473. The European Jurisprudence 1483.1. Elements of the Predatory Pricing Tests 1493.2. The Meaning and the Problem with Intent as an Element of thePredatory Pricing Test 1523.2.1. Evidence of Eliminatory Intent in the AKZO Case 1523.2.2. Evidence of Intent in Tetra Pak II 1553.2.3. Evidence of Intent in France Telecom 1563.2.4. Inconsistency between the Notions of Intent and Abuse 1583.2.5. Does the Current Application of the Notion of Intent Protect'As efficient' Competitors? 1593.3. Recoupment 1603.3.1. The Meaning of Recoupment 1603.3.2. Tetra Pak II and the European Debate on Recoupment 1623.3.3. The Rejection of Recoupment in France Telecom 1643.3.4. How does the Recoupment Criterion fit in the Framework ofArticle 82? 166Conclusion 1715. Rebates 173Introduction 1731. Fidelity Rebates: Origin and Development 1751.1. The Origin of the Notion of Fidelity Rebates 1751.2. Expansion of the Notion of Fidelity Rebates to Target Rebates 1781.2.1. Michelin I 1781.2.2. British Airways 1801.3. Expansion of the Notion of Fidelity Rebates to Quantity Rebates(Michelin II) 1822. Negative Effects and Economic Justifications 1842.1. Negative Effects of Rebate Schemes according to the Case Law 1852.1.1. Depriving Customers of the Ability to Choose their Suppliers 1852.1.2. Foreclosure of Competitors 1872.1.3. Strengthening of a Dominant Position 1932.1.4. Prejudice to Consumers 1932.1.5. Four Effects or Just One? 1942.2. Reasons for the Absence of Successful Economic Justifications forExclusionary Rebate Schemes 1952.2.1. The Historical Dichotomy between Quantity Rebates and FidelityRebates 1962.2.2. The Abandonment of the Traditional Dichotomy 1972.2.3. Obstacles to adopting a Wider Efficiency Justification under theText of Article 82 1992.3. Concluding Observations on the Effects of Rebates 2003. Should Rebates be Prohibited for a Discriminatory Effect? 2003.1. Discriminatory Effect according to the Case Law 2013.1.1. Discriminatory Effect inherent to Fidelity Rebates 2013.1.2. Is Discrimination always Presumed in Target Rebates? 2013.1.3. Discrimination inherent in Practices which hinder Competitionacross National Borders 2033.1.4. Discrimination as an Independent Offence where the Rebates aregranted by a Public Undertaking 2043.1.5. Observations 2043.2. Can the Application of Article 82(c) be Reformed in a Meaningful Way? 2083.2.1. The Economic View of Price Discrimination 2093.2.2. Price Discrimination under the Robinson-Patman Act 2113.3. Should Article 82(c) be applied to Exclusionary Rebate Schemes? 215Conclusion 2176. Tying and Bundling 219Introduction 2191. The per se Illegality Rule in Europe and the US 2211.1. The Approach of the Community Courts in the Classical Tying Cases 2211.1.1. Hilti 2211.1.2. Tetra Pak II 2221.1.3. Hoffmann-La Roche 2241.1.4. The Common Pattern of the Analyses in the Classical Tying CaseLaw 2251.2. The Hostile American Approach to Tying Practices 2261.2.1. The Early per se Illegal Approach in the American Jurisprudence 2261.2.2. Modified per se Illegality Rule 2262. Similarities between Tying and Refusals to Deal 2283. Different Paths to Modernisation 2303.1. Legalistic Approach to the Reform 2303.1.1. The Concept of a Separate Products Test 2313.1.2. Coercion 2373.2. An Economics-based Approach 2393.2.1. The Chicago Theories of Tying 2393.2.2. Post Chicagoan Theories 2413.2.3. Applicability of the Economic Theories to Article 82 2454. The CFI's Ruling in Microsoft 2494.1. Separate Products Test 2504.2. Coercion 2514.3. Foreclosure 2524.4. What Effect? 2544.5. Transforming the Notion of Objective Justification into EfficiencyJustification 2554.6. Final observations on Microsoft 256Conclusion 2567. The Concept of Objective Justification: Scope and Application 259Introduction 2591. What is an Objective Justification? 2601.1. The Conventional Understanding of Objective Justification underArticle 82 2601.2. The Meaning of Objective Justification in the Area of Free Movement ofGoods 2611.3. What Does it Mean to Apply Public Policy Considerations as an ObjectiveJustification under Article 82? 2612. The Community Courts' Approach under Article 82 in the Classical Case Law 2622.1. Objective Justification: factors beyond the control of the dominantundertaking 2622.1.1. Objective Justification in Excessive and Discriminatory PricingCases 2622.1.2. Objective Justification in Refusal to Deal Cases 2642.2. Public Policy Considerations as an Objective Justification 2663. 'Meeting Competition Defence' 2693.1. Purpose of the Defence 2693.2. The Meeting Competition Defence in the Robinson-Patman Act 2703.3. The Meeting Competition Defence in the EC Case Law 2713.3.1. Meeting Competition Defence in Refusal to Deal Cases 2723.3.2. Meeting Competition Defence in Predatory Pricing Cases 2733.3.3. Unavailability of the Meeting Competition Defence in Casesinvolving Loyalty Rebates 2763.3.4. Meeting Competition Defence for Above-Cost Selective Price Cuts 2773.3.5. The Lesson from the Case Law 2783.3.6. Why the Meeting Competition Defence does not Fit in the CurrentFramework of Article 82 2794. Objective or Efficiency Justification 2814.1. Preliminary Notes on the Problem of Efficiency in the Context ofArticle 82 2814.2. The American Treatment of Efficiency Justifications 2824.3. Efficiency Considerations understood as a Minimum Efficient Scale ofPperation in the Interest of the Public 2844.3.1. Restrictions on Competition imposed by Dominant Associationsin the Interest of the Public 2844.3.2. Efficiency Considerations in Article 86(2) 2864.4. The Community Courts' Difficulties in establishing Efficiencies as aJustification for Exclusionary Conduct 2884.4.1. Rulings that Reject an Efficiency Justification 2884.2.2. Rulings that accept the Possibility of an Efficiency Justification. 289Conclusion 294PART 2: PATHS TO MODERNISATION 2978. The Modernisation of Article 81 and the Rules on Merger Control 299Introduction 2991. The Modernisation of Article 81 3011.1. Some Preliminary Notes on the Modernisation of Article 81 3011.1.1. Reasons for Modernisation of the Substantive Analyses underArticle 81 3011.1.2. Why did the reform of Article 81 Precede the Reform ofArticle 82? 3031.2. New Policy Objectives 3051.3. The Commission's Methodology for Assessing the AnticompetitiveEffects of Agreements 3051.3.1. Assessment of negative Effects under Article 81(1) 3061.4. Major Novelties in the Assessment under Article 81(3) 3091.4.1. The Role of Efficiency Gains 3091.4.2. Detailed Test for Consumers' Share of the Benefits 3101.4.3. Restrictions Indispensable to the Attainment of Efficiency Gains 3111.4.4. No Elimination of Competition 3111.5. Conclusion on the Modernisation of Article 81 3122. Modernisation of the Rules on Mergers 3132.1. Reasons for the Reform 3132.2. The Objectives of the New Rules 3152.3. The Subtle Changes Introduced with the New Test 3162.4. Assessment of Negative Effects of Non-Horizontal Mergers 3172.4.1. Screening on the Basis of Market Shares 3182.4.2. Foreclosure 3182.4.3. Overall Likely Impact on Effective Competition 3202.4.4. The Treatment of Efficiencies under the New Rules 3213. Common Characteristics of the Reforms under Article 81 and the Rules onMerger Control 3243.1. Common Reasons for the Reforms and Proceedings 3243.2. Steering the Analyses in the Same Direction 3249. Competing Tests for the Assessment of Exclusionary Conduct 327Introduction 3271. A Unitary Test for Exclusionary Conduct? 3301.1. No Economic Sense Test 3301.1.1. Major Propositions of the Test 3301.1.2. Application in the Case Law 3311.1.3. Alleged Advantages of the Test 3221.1.4. Criticism 3321.2. Profit Sacrifice Test 3331.2.1. Major Propositions of the Test 3331.2.2. Application of the Test in the Case Law 3341.2.3. Alleged Advantages of the Test: Administrability and LowInvestigation Costs 3341.2.4. Criticism 3351.3. 'As Efficient Competitor' Test 3361.3.1. Major Propositions of the Test 3361.3.2. Application in the Existing Case Law 3361.3.3. Alleged Advantages of the Test 3371.3.4. Criticism 3371.4. Consumer Welfare Test 3391.4.1. Major Propositions of the Test 3391.4.2. Application of the Test in the Existing Case Law 3401.4.3. Advantages of the Test: Wide Coverage and Best Alignment withthe Objectives of Antitrust 3411.4.4. Criticism 3421.5. Observations 3442. A Combination of Standards 3442.1. Decision Theory and Antitrust Rules 3452.2. Popofsky's Proposal for Rationalising the Current Case Law underSection 2 3462.3. The Report of the DOJ 3472.4. Arguments against a Multiple Test Approach 350Conclusion 35110. The Proposal for a Reform in the Guidance Paper 353Introduction 3531. The Challenges faced by the Commission 3541.1. The Challenge of Responding Adequately to Various Criticisms 3541.1.1. Overcoming Enforcement Errors versus Overcoming anEstablished Competition Law Culture 3541.1.2 Effects-based Approach versus Legal Certainty 3551.2. The Challenge of Complying with the Framework established by thePreceding Modernisations 3561.2.1. Difficulties related to the Attainment of Predefined Objectives 3561.2.2. The Need to Align the Analyses under Articles 81 and 82 toIdentical Practices 3571.2.3. The Difficulties related to the Accommodation of Efficiencies 3571.3. What to do with the Existing Case Law? 3581.4. What Test(s) for the Assessment of Exclusionary Conduct? 3591.5. Guiding Principles or Detailed Rules? 3602. The Commission's Solution: From Discussion Paper to Guidance Paper 3602.1. The Role of the Discussion Paper 3602.2. Why an 'Enforcement Priority' Guidance Paper? 3623. Objectives of Article 82 and the Framework of the Analyses in the GuidancePaper 3643.1. Objectives of Article 82 3643.2. General Framework and Methodology of the Analyses under Article 82 3654. Dominance 3664.1. Definition of Dominance 3664.2. Relevant Factors in Assessing Dominance 3674.2.1. Constraints from Existing Competitors and the Relevance ofMarket Shares of the Dominant Undertaking and its Rivals 3674.2.2. Constraints from Potential Competitors 3684.2.3. Constraints from Customers: Countervailing Buyer Power 3694.2.4. Implications of the Reconsidered Notion of Dominance 3705. Anticompetitive Foreclosure 3705.1. Definition 3705.2. Relevant Considerations in establishing Anticompetitive Foreclosure 3715.2.1. The Relevance of Dominance 3715.2.2. Market Specific Conditions 3725.2.3. The Position of Dominant Undertakings' Competitors and theirStrategies 3725.2.4. The Position of Customers and Input Suppliers 3735.2.5. Extent of the Allegedly Abusive Conduct 3735.2.6. Actual Foreclosure 3735.2.7. Direct Evidence 3745.2.8. Balanced Assessment 3755.3. Price-based Exclusionary Conduct 3755.3.1. The as Efficient Competitor Test 3755.3.2. Exclusion of Less Efficient Competitors 3765.3.3. Per se Abuses? 3775.4. General Observations on the Assessment of Anticompetitive ForeclosureEffects 3776. Objective Justification and Efficiencies Defence 3786.1. Objective Necessity Defence: Scope and Meaning 3786.2. Efficiency Defence 3806.2.1. Does the Efficiency Defence Make an Actual Difference? 3826.2.2. Does the Methodology and the Structure of the Defence Fit theText and the Logic of Article 82? 3846.2.3. Consequences of the Commission's compliance with the CFI'sruling in Microsoft 3857. Assessment of Exclusive Purchasing 3877.1. Assessment of Anticompetitive Foreclosure 3877.2. Alignment of the Analyses of Exclusive Dealing under Articles 81 and 82 3898. Assessment of Rebates 3898.1. In What Way can Rebates be Anticompetitive? 3908.2. Assessment 3918.2.1. Assessment of the Effective Price that Competitors Need to Offerin Order to Compete 3918.2.2. Assessment of Legality of the Rebate 3928.2.3. Other Rebates 3938.3. Efficiency Defence 3948.4. What Remains of the Case Law? 3948.5. Administrative Costs and Legal (un)Certainty 3959. Assessment of Tying and Bundling 3969.1. The 'Distinct Product' Criterion 3969.2. The 'Anticompetitive Foreclosure Effect' Criterion 3989.3. Mixed Bundling 4009.4. Efficiencies in Tying and Bundling Cases 4029.5. Administrative Costs and Legal Certainty 40210. Assessment of Predatory Pricing 40310.1. The Proposal of the Discussion Paper in a Nutshell 40310.2. The Analysis of Predatory Pricing according to the Guidance Paper 40410.2.1. Definition of Predatory Pricing 40410.2.2. Sacrifice 40510.2.3. Anticompetitive Foreclosure 40610.2.4. Is Recoupment Relevant? 40710.2.5. Above-cost Selective Price-cutting 40910.2.6. What is the Role of Intent? 41010.2.7. Final Observations on the Commission's Approach to PredatoryPricing 41011. Assessment of Refusals to Deal and Margin Squeeze 41111.1. General Principles 41111.2. The Test for Abusive Refusals to Supply 41211.2.1. Objective Necessity 41211.2.2. Elimination of Effective Competition 41311.2.3. Consumer Harm 41411.2.4. Efficiency 41511.3. Termination of Supply 41611.4. Margin Squeeze 41711.4.1. Margin Squeeze prior to the Guidance Paper 41811.4.2. Application of the Refusal to Deal Test to Margin Squeeze 42011.5. Refusals to Deal by Former Monopolists or Regulated Undertakings 42311.6. Is the New Approach more Lenient or more Stringent for DominantUndertakings? 42412. Conclusion 42512.1. The Commission's Choice of Tests for the Assessment of ExclusionaryConduct 42512.2. Legal (un)Certainty 42612.3. Achieving Consistency but Losing Sight of the Specific Role ofArticle 82 42712.4. Will the Courts Support the Reform? 42811. Modernising Article 82: An Alternative Path 431Introduction 4311. The Vanishing Boundaries of Articles 81 and 82 4331.1. What is the Difference between Agreements and Unilateral Acts? 4341.1.1. Expansion of the Notion of Agreement under Article 81 4351.1.2. Unsuccessful Attempt to Retreat 4361.1.3. Characteristics of an 'Agreement' 4381.1.4. When is a Practice a Unilateral Act? 4401.1.5. Agreements and Unilateral Acts under Article 82 4411.1.6. Is there any Difference between Vertical AgreementsConstituting an Abuse under Article 82 and Vertical AgreementsRestrictive of Competition under Article 81? 4421.1.7. Same Legal Consequences of Finding AnticompetitiveAgreements under Article 81 and Article 82 4431.2. Is Dominance the only Difference between Articles 81 and 82? 4451.2.1. The 'Melting' of Dominance and the 'Rise' of Market Power:Another Step towards Convergence 4461.2.2. An Increasing Relevance of Market Power under Article 81 4491.3. An Overlap between the Scope of Article 81 and the Scope of Article 82in the Area of Vertical Agreements 4531.4. The Commission Guidance PaperThe Last Brick in the Convergenceprocess 4552. Alternative Proposals 4562.1. Dominance as a Distinction between Articles 81 and 82 (First Option) 4572.2. Distinguishing Agreements from Unilateral Acts and making Article 82applicable only to Unilateral Acts (Second Option) 4602.2.1. How to Distinguish Agreements from Unilateral Acts 4612.2.2. Does the Proposed Distinction between Agreements andUnilateral Acts make Economic Sense? 4662.2.3. Different Position of 'Consumers' 4692.2.4. Different Remedies 4702.2.5. Higher Standard of Proof for Unilateral Conduct in the CurrentCase Law 4712.2.6. Affirming the Sole Applicability of Article 81 to Agreements 4722.2.7. Advantages of Reviewing Agreements Exclusively underArticle 81 4733. Elaborating an Appropriate Test for the Assessment of Unilateral Conductunder Article 82 4733.1. Preliminary Considerations 4743.1.1. Reminder of the Objectives of the Reform 4743.1.2. Limits imposed by the Text of Article 82 4743.1.3. Important Characteristics of Unilateral Conduct 4753.2. Proposal for a Test for the Assessment of a Unilateral Conduct 4803.2.1. Elements of the Test 4823.2.2. Burden of Proof under the Proposed Test 498Conclusion 500Final Remarks 503