Rethinking Exclusionary Abuses in EU Competition Law

Dr Ekaterina Rousseva was awarded her PhD in law by the European University Institute in Florence. She has practised competition law as an attorney, and is currently a case-handler at the European Commission's Directorate-General for Competition in Brussels.

...Ekaterina Rousseva's book offers a stimulating and critical analysis of Article 102 TFEU and constitutes a valuable contribution to the literature. Ioannis Lianos World Competition Law and Economics Review 34(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. Witt European Law Review Volume 36, August 2011 Rousseva 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 Vijver European Competition Law Review Volume 32, Issue 6 Ms 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 Fournier Competition Law Journal 2010 The 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 Hailer Common Market Law Review Volume 48, Issue 1 Ms 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 Fournier Competition Law Journal 2010

• PART 1: THE CASE LAWON EXCLUSIONARY ABUSES: EVOLUTION AND PROBLEMS 7 1. Article 82: Drafting History, Ideologies and Major Players in the Process of its Development 9 Introduction 9 1. The Road to Article 82 EC: Possible Sources of Inspiration for the Adoption of the Text of Article 82 10 1.1. The Influence of the Cultural Inheritance: Attitudes towards Restrictive Practices and Market Power in Europe 10 1.1.1. European Attitude towards Power 11 1.1.2. European Pre-war Legislation 11 1.2. European Competition Rules in the Context of Economic Integration and Economic Growth 12 1.2.1. Post-war European Legislation 13 1.2.2. The Competition Law Provisions in the ECSC Treaty 13 1.2.3. The Drafting History of Article 82 15 1.3. Why Section 2 of the Sherman Act was not used as a Prototype for Article 82 18 1.4. Article 82-A Product of Different Influences 20 2. An Overview of the Text of Article 82 and its Connection with Other Rules of the EC Competition Law System 20 2.1. The Text of Article 82 20 2.2. Article 82 and Other Competition Rules 21 2.2.1. Article 81 and Article 82 21 2.2.2. Article 82 and Article 86 23 2.2.3. Article 82 and the Merger Regulation 24 3. Sources of Inspiration, and Factors determining the Policy under Article 82 26 3.1. The Role of the European and American Economic Schools of Thought 26 3.1.1. The Ordoliberal School of Thought 26 3.1.2. Harvard School of Thought (Industrial Organisation) 32 3.1.3. The Ordoliberal and Harvard Schools: Different Roads to Common Values 37 3.1.4. The Chicago School 38 3.1.5. The Post-Chicago School 41 3.1.6. The Meaning of 'Consumer Welfare' according to the Different Schools of Thought 45 3.1.7. The Overall Impact of the above Schools of Thought on the Development of Article 82 48 3.2. The Influence of American Jurisprudence 48 4. Different Players in the Development of Article 82 49 4.1. The Role of the Commission 49 4.1.1. The Institutional Independence of the Commission as a Policy-maker 49 4.1.2. The Dominant Culture and Ideology of DG Competition in the First Decades 51 4.1.3. A Shift towards an Economics-based Approach 51 4.2. The Role of the Community Courts 52 4.2.1. The Powers of the Community Courts in shaping European Competition Policy 52 4.2.2. Interpretative Methodology applied by the Community Courts 53 4.2.3. Advocates General 54 4.3. Scholars 55 Conclusion 57 2. Seminal Case Law and Seminal Concepts 59 Introduction 59 1. The Continental Can Case 60 1.1. The Interpretative Method of the Court of Justice 61 1.1.1. Article 82 in relation to the Objectives of the Treaty 61 1.1.2. The Relationship between Article 82 and Article 81 61 1.1.3. Arguments elicited from the Text of the Provision 62 1.1.4. Similarity with the Approach followed by the US Supreme Court in the Standard Oil Case 62 1.2. The Court's Understanding of Competitive Harm 63 1.3. Other Important Characteristics of the Notion of Abuse 63 1.3.1. No Fault is Necessary 63 1.3.2. Dominance does not itself need to be the Means for the Abuse 63 2. United Brands and the Concept of Dominance 64 3. The Definition of 'Exclusionary Abuse' in the Hoffmann-La Roche Case 67 3.1. Normal Competition 68 3.2. The Effect Element 68 3.3. The Discouraging US Experience 69 4. Michelin I-The Notion of Special Responsibility 71 5. Connection between Dominance and Abuse 73 5.1. The Court's Position in Continental Can and Hoffmann-La Roche 73 5.2. Possible Links between Dominance and Abuse 74 5.3. Examples of Links between Dominance and Abuse 75 5.3.1. Dominance as a Condition for the Conduct to take Place 75 5.3.2. Dominance as a Condition for a Negative Effect on Competition 76 5.3.3. Dominance as a Condition for a Worsening Effect on Competition 77 5.4. The Practical Implications of Knowing the Links between Dominance and Abuse 78 Conclusion 79 3. Refusals to Deal 81 Introduction 81 1. The Community Courts' Approach 83 1.1. The Early Case Law: Protecting Individuals' Economic Freedom 83 1.1.1. The Commercial Solvents Case 83 1.1.2. United Brands Co v Commission 85 1.1.3. BP v Commission 87 1.1.4. The Common Features of the Early Case Law 87 1.2. Transition from Protecting Economic Freedom of Individuals to Protecting Competition 88 1.2.1. Telemarketing: The two Markets Rationale and the Notion of Indispensability 89 1.2.2. Volvo v Veng and the Freedom of an Intellectual Property Owner to Refuse to License 90 1.2.3. The Commonality between Volvo v Veng and Telemarketing 91 1.3. The Test for Abusive Refusals to Deal in the Recent Case Law 91 1.3.1. The Magill case-Refusal to License IP Rights Abusive only in Exceptional Circumstances 92 1.3.2. The Ladbroke case: Failed Allegations of Abuse 94 1.3.3. The Oscar Bronner Test 95 1.3.4. The IMS Health Case 96 1.4. The Microsoft Case: Progress or Retreat? 100 1.4.1. Some Preliminary Notes 100 1.4.2. The Commission's Novel Approach 101 1.4.3. The CFI's Reaction to the Novelties: Is there a Change in the Test for Abusive Refusal to License IP Rights? 102 1.4.4. The CFI's Understanding of the Condition of Indispensability 104 1.4.5. The Condition of Elimination of Competition 106 1.4.6. The 'Preventing the Launch of a New Product' Condition 109 1.4.7. The Absence of an Objective Justification 110 1.5. General Observations about the Historical Development of the Case Law 111 2. The Problems with the Current Test for Abuse 113 2.1. The Problem with the Condition of 'Indispensability' 113 2.1.1. Indispensability Considered Satisfied on the Basis of a Narrow Market Definition 114 2.1.2. The Overlap between the Oscar Bronner two-tier Test for Indispensability and the Demand/Supply-side Substitutability Test for defining Relevant Markets 114 2.1.3. IMS Health: Explicit Acknowledgement of the Overlap between the Test for Substitutability in defining Relevant Markets and the Test for Indispensability 118 2.1.4. Indispensability Determines the Existence of Hypothetical Markets 120 2.1.5. Interoperability Information 121 2.1.6. Final Observations regarding the Indispensability Condition 121 2.2. Exclusion of Competition in the Secondary Market 122 2.3. Problems with the 'New Product' Requirement 122 2.3.1. Two Different Ways to interpret the 'New Product' Criterion 122 2.3.2. The Failure of the Current Test to catch Prevention of Development of New Markets 124 2.3.3. The Insurmountable Difficulty of elaborating a 'New Product' Criterion 125 2.3.4. Should Refusals to License IP Rights and Refusals to Deal be Treated Differently? 128 2.4. Objective Justification 131 Conclusion 131 4. Predatory Pricing 133 Introduction 133 1. Theories and Economic Models 136 1.1. The Areeda-Turner Single Cost-Based Rule 136 1.2. Criticism of the Areeda-Turner Rule and Alternative Proposals 137 1.2.1. Simple Non-Cost Based Tests 137 1.2.2. Combination of Cost-Based and Additional Factors Tests 138 1.3. The Radical Chicago School Approach 139 1.4. Post-Chicago Revelations 140 1.4.1. Financial Predation 141 1.4.2. Cost Signalling 142 1.4.3. Reputation Effects 142 1.4.4. Criticisms of the Post-Chicago Models 143 2. The US Jurisprudence in a Nutshell 144 2.1. A Modified Areeda-Turner Rule 145 2.2. Matsushita 145 2.3. Establishing the Recoupment Condition in Brooke Group 146 2.4. Expansion of the Recoupment Condition to Price Bidding in Weyerhaeuser Co v Ross-Simmons Hard-Wood Lumber Co Inc 147 3. The European Jurisprudence 148 3.1. Elements of the Predatory Pricing Tests 149 3.2. The Meaning and the Problem with Intent as an Element of the Predatory Pricing Test 152 3.2.1. Evidence of Eliminatory Intent in the AKZO Case 152 3.2.2. Evidence of Intent in Tetra Pak II 155 3.2.3. Evidence of Intent in France Telecom 156 3.2.4. Inconsistency between the Notions of Intent and Abuse 158 3.2.5. Does the Current Application of the Notion of Intent Protect 'As efficient' Competitors? 159 3.3. Recoupment 160 3.3.1. The Meaning of Recoupment 160 3.3.2. Tetra Pak II and the European Debate on Recoupment 162 3.3.3. The Rejection of Recoupment in France Telecom 164 3.3.4. How does the Recoupment Criterion fit in the Framework of Article 82? 166 Conclusion 171 5. Rebates 173 Introduction 173 1. Fidelity Rebates: Origin and Development 175 1.1. The Origin of the Notion of Fidelity Rebates 175 1.2. Expansion of the Notion of Fidelity Rebates to Target Rebates 178 1.2.1. Michelin I 178 1.2.2. British Airways 180 1.3. Expansion of the Notion of Fidelity Rebates to Quantity Rebates (Michelin II) 182 2. Negative Effects and Economic Justifications 184 2.1. Negative Effects of Rebate Schemes according to the Case Law 185 2.1.1. Depriving Customers of the Ability to Choose their Suppliers 185 2.1.2. Foreclosure of Competitors 187 2.1.3. Strengthening of a Dominant Position 193 2.1.4. Prejudice to Consumers 193 2.1.5. Four Effects or Just One? 194 2.2. Reasons for the Absence of Successful Economic Justifications for Exclusionary Rebate Schemes 195 2.2.1. The Historical Dichotomy between Quantity Rebates and Fidelity Rebates 196 2.2.2. The Abandonment of the Traditional Dichotomy 197 2.2.3. Obstacles to adopting a Wider Efficiency Justification under the Text of Article 82 199 2.3. Concluding Observations on the Effects of Rebates 200 3. Should Rebates be Prohibited for a Discriminatory Effect? 200 3.1. Discriminatory Effect according to the Case Law 201 3.1.1. Discriminatory Effect inherent to Fidelity Rebates 201 3.1.2. Is Discrimination always Presumed in Target Rebates? 201 3.1.3. Discrimination inherent in Practices which hinder Competition across National Borders 203 3.1.4. Discrimination as an Independent Offence where the Rebates are granted by a Public Undertaking 204 3.1.5. Observations 204 3.2. Can the Application of Article 82(c) be Reformed in a Meaningful Way? 208 3.2.1. The Economic View of Price Discrimination 209 3.2.2. Price Discrimination under the Robinson-Patman Act 211 3.3. Should Article 82(c) be applied to Exclusionary Rebate Schemes? 215 Conclusion 217 6. Tying and Bundling 219 Introduction 219 1. The per se Illegality Rule in Europe and the US 221 1.1. The Approach of the Community Courts in the Classical Tying Cases 221 1.1.1. Hilti 221 1.1.2. Tetra Pak II 222 1.1.3. Hoffmann-La Roche 224 1.1.4. The Common Pattern of the Analyses in the Classical Tying Case Law 225 1.2. The Hostile American Approach to Tying Practices 226 1.2.1. The Early per se Illegal Approach in the American Jurisprudence 226 1.2.2. Modified per se Illegality Rule 226 2. Similarities between Tying and Refusals to Deal 228 3. Different Paths to Modernisation 230 3.1. Legalistic Approach to the Reform 230 3.1.1. The Concept of a Separate Products Test 231 3.1.2. Coercion 237 3.2. An Economics-based Approach 239 3.2.1. The Chicago Theories of Tying 239 3.2.2. Post Chicagoan Theories 241 3.2.3. Applicability of the Economic Theories to Article 82 245 4. The CFI's Ruling in Microsoft 249 4.1. Separate Products Test 250 4.2. Coercion 251 4.3. Foreclosure 252 4.4. What Effect? 254 4.5. Transforming the Notion of Objective Justification into Efficiency Justification 255 4.6. Final observations on Microsoft 256 Conclusion 256 7. The Concept of Objective Justification: Scope and Application 259 Introduction 259 1. What is an Objective Justification? 260 1.1. The Conventional Understanding of Objective Justification under Article 82 260 1.2. The Meaning of Objective Justification in the Area of Free Movement of Goods 261 1.3. What Does it Mean to Apply Public Policy Considerations as an Objective Justification under Article 82? 261 2. The Community Courts' Approach under Article 82 in the Classical Case Law 262 2.1. Objective Justification: factors beyond the control of the dominant undertaking 262 2.1.1. Objective Justification in Excessive and Discriminatory Pricing Cases 262 2.1.2. Objective Justification in Refusal to Deal Cases 264 2.2. Public Policy Considerations as an Objective Justification 266 3. 'Meeting Competition Defence' 269 3.1. Purpose of the Defence 269 3.2. The Meeting Competition Defence in the Robinson-Patman Act 270 3.3. The Meeting Competition Defence in the EC Case Law 271 3.3.1. Meeting Competition Defence in Refusal to Deal Cases 272 3.3.2. Meeting Competition Defence in Predatory Pricing Cases 273 3.3.3. Unavailability of the Meeting Competition Defence in Cases involving Loyalty Rebates 276 3.3.4. Meeting Competition Defence for Above-Cost Selective Price Cuts 277 3.3.5. The Lesson from the Case Law 278 3.3.6. Why the Meeting Competition Defence does not Fit in the Current Framework of Article 82 279 4. Objective or Efficiency Justification 281 4.1. Preliminary Notes on the Problem of Efficiency in the Context of Article 82 281 4.2. The American Treatment of Efficiency Justifications 282 4.3. Efficiency Considerations understood as a Minimum Efficient Scale of Pperation in the Interest of the Public 284 4.3.1. Restrictions on Competition imposed by Dominant Associations in the Interest of the Public 284 4.3.2. Efficiency Considerations in Article 86(2) 286 4.4. The Community Courts' Difficulties in establishing Efficiencies as a Justification for Exclusionary Conduct 288 4.4.1. Rulings that Reject an Efficiency Justification 288 4.2.2. Rulings that accept the Possibility of an Efficiency Justification. 289 Conclusion 294 PART 2: PATHS TO MODERNISATION 297 8. The Modernisation of Article 81 and the Rules on Merger Control 299 Introduction 299 1. The Modernisation of Article 81 301 1.1. Some Preliminary Notes on the Modernisation of Article 81 301 1.1.1. Reasons for Modernisation of the Substantive Analyses under Article 81 301 1.1.2. Why did the reform of Article 81 Precede the Reform of Article 82? 303 1.2. New Policy Objectives 305 1.3. The Commission's Methodology for Assessing the Anticompetitive Effects of Agreements 305 1.3.1. Assessment of negative Effects under Article 81(1) 306 1.4. Major Novelties in the Assessment under Article 81(3) 309 1.4.1. The Role of Efficiency Gains 309 1.4.2. Detailed Test for Consumers' Share of the Benefits 310 1.4.3. Restrictions Indispensable to the Attainment of Efficiency Gains 311 1.4.4. No Elimination of Competition 311 1.5. Conclusion on the Modernisation of Article 81 312 2. Modernisation of the Rules on Mergers 313 2.1. Reasons for the Reform 313 2.2. The Objectives of the New Rules 315 2.3. The Subtle Changes Introduced with the New Test 316 2.4. Assessment of Negative Effects of Non-Horizontal Mergers 317 2.4.1. Screening on the Basis of Market Shares 318 2.4.2. Foreclosure 318 2.4.3. Overall Likely Impact on Effective Competition 320 2.4.4. The Treatment of Efficiencies under the New Rules 321 3. Common Characteristics of the Reforms under Article 81 and the Rules on Merger Control 324 3.1. Common Reasons for the Reforms and Proceedings 324 3.2. Steering the Analyses in the Same Direction 324 9. Competing Tests for the Assessment of Exclusionary Conduct 327 Introduction 327 1. A Unitary Test for Exclusionary Conduct? 330 1.1. No Economic Sense Test 330 1.1.1. Major Propositions of the Test 330 1.1.2. Application in the Case Law 331 1.1.3. Alleged Advantages of the Test 322 1.1.4. Criticism 332 1.2. Profit Sacrifice Test 333 1.2.1. Major Propositions of the Test 333 1.2.2. Application of the Test in the Case Law 334 1.2.3. Alleged Advantages of the Test: Administrability and Low Investigation Costs 334 1.2.4. Criticism 335 1.3. 'As Efficient Competitor' Test 336 1.3.1. Major Propositions of the Test 336 1.3.2. Application in the Existing Case Law 336 1.3.3. Alleged Advantages of the Test 337 1.3.4. Criticism 337 1.4. Consumer Welfare Test 339 1.4.1. Major Propositions of the Test 339 1.4.2. Application of the Test in the Existing Case Law 340 1.4.3. Advantages of the Test: Wide Coverage and Best Alignment with the Objectives of Antitrust 341 1.4.4. Criticism 342 1.5. Observations 344 2. A Combination of Standards 344 2.1. Decision Theory and Antitrust Rules 345 2.2. Popofsky's Proposal for Rationalising the Current Case Law under Section 2 346 2.3. The Report of the DOJ 347 2.4. Arguments against a Multiple Test Approach 350 Conclusion 351 10. The Proposal for a Reform in the Guidance Paper 353 Introduction 353 1. The Challenges faced by the Commission 354 1.1. The Challenge of Responding Adequately to Various Criticisms 354 1.1.1. Overcoming Enforcement Errors versus Overcoming an Established Competition Law Culture 354 1.1.2 Effects-based Approach versus Legal Certainty 355 1.2. The Challenge of Complying with the Framework established by the Preceding Modernisations 356 1.2.1. Difficulties related to the Attainment of Predefined Objectives 356 1.2.2. The Need to Align the Analyses under Articles 81 and 82 to Identical Practices 357 1.2.3. The Difficulties related to the Accommodation of Efficiencies 357 1.3. What to do with the Existing Case Law? 358 1.4. What Test(s) for the Assessment of Exclusionary Conduct? 359 1.5. Guiding Principles or Detailed Rules? 360 2. The Commission's Solution: From Discussion Paper to Guidance Paper 360 2.1. The Role of the Discussion Paper 360 2.2. Why an 'Enforcement Priority' Guidance Paper? 362 3. Objectives of Article 82 and the Framework of the Analyses in the Guidance Paper 364 3.1. Objectives of Article 82 364 3.2. General Framework and Methodology of the Analyses under Article 82 365 4. Dominance 366 4.1. Definition of Dominance 366 4.2. Relevant Factors in Assessing Dominance 367 4.2.1. Constraints from Existing Competitors and the Relevance of Market Shares of the Dominant Undertaking and its Rivals 367 4.2.2. Constraints from Potential Competitors 368 4.2.3. Constraints from Customers: Countervailing Buyer Power 369 4.2.4. Implications of the Reconsidered Notion of Dominance 370 5. Anticompetitive Foreclosure 370 5.1. Definition 370 5.2. Relevant Considerations in establishing Anticompetitive Foreclosure 371 5.2.1. The Relevance of Dominance 371 5.2.2. Market Specific Conditions 372 5.2.3. The Position of Dominant Undertakings' Competitors and their Strategies 372 5.2.4. The Position of Customers and Input Suppliers 373 5.2.5. Extent of the Allegedly Abusive Conduct 373 5.2.6. Actual Foreclosure 373 5.2.7. Direct Evidence 374 5.2.8. Balanced Assessment 375 5.3. Price-based Exclusionary Conduct 375 5.3.1. The as Efficient Competitor Test 375 5.3.2. Exclusion of Less Efficient Competitors 376 5.3.3. Per se Abuses? 377 5.4. General Observations on the Assessment of Anticompetitive Foreclosure Effects 377 6. Objective Justification and Efficiencies Defence 378 6.1. Objective Necessity Defence: Scope and Meaning 378 6.2. Efficiency Defence 380 6.2.1. Does the Efficiency Defence Make an Actual Difference? 382 6.2.2. Does the Methodology and the Structure of the Defence Fit the Text and the Logic of Article 82? 384 6.2.3. Consequences of the Commission's compliance with the CFI's ruling in Microsoft 385 7. Assessment of Exclusive Purchasing 387 7.1. Assessment of Anticompetitive Foreclosure 387 7.2. Alignment of the Analyses of Exclusive Dealing under Articles 81 and 82 389 8. Assessment of Rebates 389 8.1. In What Way can Rebates be Anticompetitive? 390 8.2. Assessment 391 8.2.1. Assessment of the Effective Price that Competitors Need to Offer in Order to Compete 391 8.2.2. Assessment of Legality of the Rebate 392 8.2.3. Other Rebates 393 8.3. Efficiency Defence 394 8.4. What Remains of the Case Law? 394 8.5. Administrative Costs and Legal (un)Certainty 395 9. Assessment of Tying and Bundling 396 9.1. The 'Distinct Product' Criterion 396 9.2. The 'Anticompetitive Foreclosure Effect' Criterion 398 9.3. Mixed Bundling 400 9.4. Efficiencies in Tying and Bundling Cases 402 9.5. Administrative Costs and Legal Certainty 402 10. Assessment of Predatory Pricing 403 10.1. The Proposal of the Discussion Paper in a Nutshell 403 10.2. The Analysis of Predatory Pricing according to the Guidance Paper 404 10.2.1. Definition of Predatory Pricing 404 10.2.2. Sacrifice 405 10.2.3. Anticompetitive Foreclosure 406 10.2.4. Is Recoupment Relevant? 407 10.2.5. Above-cost Selective Price-cutting 409 10.2.6. What is the Role of Intent? 410 10.2.7. Final Observations on the Commission's Approach to Predatory Pricing 410 11. Assessment of Refusals to Deal and Margin Squeeze 411 11.1. General Principles 411 11.2. The Test for Abusive Refusals to Supply 412 11.2.1. Objective Necessity 412 11.2.2. Elimination of Effective Competition 413 11.2.3. Consumer Harm 414 11.2.4. Efficiency 415 11.3. Termination of Supply 416 11.4. Margin Squeeze 417 11.4.1. Margin Squeeze prior to the Guidance Paper 418 11.4.2. Application of the Refusal to Deal Test to Margin Squeeze 420 11.5. Refusals to Deal by Former Monopolists or Regulated Undertakings 423 11.6. Is the New Approach more Lenient or more Stringent for Dominant Undertakings? 424 12. Conclusion 425 12.1. The Commission's Choice of Tests for the Assessment of Exclusionary Conduct 425 12.2. Legal (un)Certainty 426 12.3. Achieving Consistency but Losing Sight of the Specific Role of Article 82 427 12.4. Will the Courts Support the Reform? 428 11. Modernising Article 82: An Alternative Path 431 Introduction 431 1. The Vanishing Boundaries of Articles 81 and 82 433 1.1. What is the Difference between Agreements and Unilateral Acts? 434 1.1.1. Expansion of the Notion of Agreement under Article 81 435 1.1.2. Unsuccessful Attempt to Retreat 436 1.1.3. Characteristics of an 'Agreement' 438 1.1.4. When is a Practice a Unilateral Act? 440 1.1.5. Agreements and Unilateral Acts under Article 82 441 1.1.6. Is there any Difference between Vertical Agreements Constituting an Abuse under Article 82 and Vertical Agreements Restrictive of Competition under Article 81? 442 1.1.7. Same Legal Consequences of Finding Anticompetitive Agreements under Article 81 and Article 82 443 1.2. Is Dominance the only Difference between Articles 81 and 82? 445 1.2.1. The 'Melting' of Dominance and the 'Rise' of Market Power: Another Step towards Convergence 446 1.2.2. An Increasing Relevance of Market Power under Article 81 449 1.3. An Overlap between the Scope of Article 81 and the Scope of Article 82 in the Area of Vertical Agreements 453 1.4. The Commission Guidance Paper-The Last Brick in the Convergence process 455 2. Alternative Proposals 456 2.1. Dominance as a Distinction between Articles 81 and 82 (First Option) 457 2.2. Distinguishing Agreements from Unilateral Acts and making Article 82 applicable only to Unilateral Acts (Second Option) 460 2.2.1. How to Distinguish Agreements from Unilateral Acts 461 2.2.2. Does the Proposed Distinction between Agreements and Unilateral Acts make Economic Sense? 466 2.2.3. Different Position of 'Consumers' 469 2.2.4. Different Remedies 470 2.2.5. Higher Standard of Proof for Unilateral Conduct in the Current Case Law 471 2.2.6. Affirming the Sole Applicability of Article 81 to Agreements 472 2.2.7. Advantages of Reviewing Agreements Exclusively under Article 81 473 3. Elaborating an Appropriate Test for the Assessment of Unilateral Conduct under Article 82 473 3.1. Preliminary Considerations 474 3.1.1. Reminder of the Objectives of the Reform 474 3.1.2. Limits imposed by the Text of Article 82 474 3.1.3. Important Characteristics of Unilateral Conduct 475 3.2. Proposal for a Test for the Assessment of a Unilateral Conduct 480 3.2.1. Elements of the Test 482 3.2.2. Burden of Proof under the Proposed Test 498 Conclusion 500 Final Remarks 503