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EUROPEAN COMMISSION DG Competition - page 6 / 113





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6. The approach to Article 82 discussed in the present paper is without prejudice to the approach which the Commission has described or will describe in notices on how to apply the Community competition rules to specific sectors.2

DP does not create legitimate interest 7. Being a discussion paper this paper cannot create any legitimate interest nor can it be relied upon to provide guidance to current Commission enforcement policy. While the discussion paper sets out possible principles for the Commission’s application of Article 82 of the Treaty to exclusionary abuses, it is in good parts drafted in the style of guidelines in order to avoid too much conditional phrasing and enhance its readability. Lastly, any possible Commission’s interpretation of Article 82 is without prejudice to the interpretation that may be given by the Court of Justice or the Court of First Instance of the European Communities.


Aim of Articles 81 & 82 is to maintain effective competition on the market - They can be applied simultaneously, but efficiency may save Domco 8. Articles 81 and 82 of the Treaty both pursue, with regard to exclusionary practices, the aim of

maintaining effective competition on the market and, according to settled case law, can be

applied simultaneously.4 Consistency requires that Article 81(3) be interpreted as precluding any application of this provision to restrictive agreements that constitute an abuse of a dominant position. However, a company holding a dominant position may also benefit from an exemption under Article 81(3) of the EC Treaty when its conditions are fulfilled.5 Therefore, if the conduct





See, for instance, Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services, OJ C 39, 06.02.1998, pp. 2-18, and Notice on the application of competition rules to access agreements in the telecommunications sector – framework, relevant markets and principles (“Access Notice”) OJ C 265, 22.08.1998, pp. 2-28. See also Commission Notice Guidelines on the application of Article 81(3) of the Treaty, OJ C 101, 27.04.2004, pp. 97-118, paragraph 106. See Joined cases C-395/96 P and C-396/96 P Compagnie maritime belge transports SA, Compagnie maritime belge SA and Dafra-Lines A/S v Commission [2000] ECR I-1365, paragraph 33. See Commission Notice Guidelines on the application of Article 81(3) of the Treaty, cited in footnote 3, paragraph 106. See in this respect also Case 27/76 United Brands Company and United Brands Continentaal BV v Commission [1978] ECR 207, paragraph 113; Case 85/76 Hoffmann-La Roche & Co. AG v Commission [1979] ECR 461, paragraphs 39 and 90; Case T-51/89 Tetra Pak Rausing SA v Commission (Tetra Pak I), [1990] ECR

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