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EUROPEAN COMMISSION DG Competition - page 25 / 113

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5.1 THE CENTRAL CONCERN AND PROOF OF FORECLOSURE

Protection of competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources

54. The essential objective of Article 82 when analysing exclusionary conduct is the protection of competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. The concern is to prevent exclusionary conduct of the dominant firm which is likely to limit the remaining competitive constraints on the dominant company, including entry of newcomers, so as to avoid that consumers are harmed. This means that it is competition, and not competitors as such, that is to be protected. Furthermore, the purpose of

Article 82 is not to protect competitors from dominant firms’ genuine competition based on factors such as higher quality, novel products, opportune innovation or otherwise better performance, but to ensure that these competitors are also able to expand in or enter the market and compete therein on the merits, without facing competition conditions which are distorted or impaired by the dominant firm.

Duration – harm to intermediate buyers – long term harm 55. Article 82 prohibits exclusionary conduct which produces actual or likely anticompetitive effects in the market and which can harm consumers in a direct or indirect way. The longer the conduct has already been going on, the more weight will in general be given to

actual effects. Harm to intermediate buyers is generally presumed to create harm to final consumers. Furthermore, not only short term harm, but also medium and long term harm arising from foreclosure is taken into account.

Foreclosure 56. The central concern of Article 82 with regard to exclusionary abuses is thus foreclosure that hinders competition and thereby harms consumers. The general principles for assessment are already provided in the previous two paragraphs. In the remainder of this section and in the following sections concerning individual abuses, more detailed principles and tests, sometimes tailored to specific practices, are provided. Where in a particular case it proves not

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