Minimum Efficient Scale Towards a more coherent understanding of - - PowerPoint PPT Presentation

Minimum Efficient Scale

Towards a more coherent understanding of “special responsibility” and “competition on the merits” under Article 102 TFEU

Xingyu Yan & Hans Vedder

ASCOLA2020

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Introduction: Two concepts

• Competition on the merits (CotM):

– as the antithesis of abuse, to acknowledge competition on the part of the dominant firm  but, vague – a search for “inherent impropriety”, a “no economic sense” test?

• Special responsibility (SP):

– singling out dominant firms: dominance as a constitutive element of unlawful conduct  but, vague – a shortcut to the abuse assessment?

• Devising an abuse test that balances enforcement

precision and cost-effectiveness?

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Structure of the paper (1)

• Part II: situating the two concepts in 102 legal framework

– case law instructs a contextualized approach

• welcome an illegality presumption
• need to honor the dominance premise
• Part III: examining the solidity of an efficiency-based

conception of CotM

– the AEC test is most qualified, albeit imperfect – the no economic sense test is not

• “profitability vs. exclusionary in a non-efficiency-based way”?
• “intent” does not help
• to reposition it as an illegality presumption

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Structure of the paper (2)

• Part IV: discussing the usefulness of MES:

– in resolving the limitations of the AEC rationale

• accounting for potentially as-efficient rivals
• reiterating the examination of actual market circumstances

– in concretizing SP

• translating SP into “a dominant firm’s obligation not to impede a rival

firm from reaching MES”

• a sliding scale of special responsibilities

– underappreciated in practice

• Deutsche Post (2001);
• the 2009 Commission Guidance Paper; the Intel decision
• Part V concludes

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Thank you!

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