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Vad är skyddsintresset bakom artikel 82 - konsumenterna eller konkurrenterna?

Lundin, Sara (2008)
Department of Law
Abstract
The existence of workable competition in the marketplace is a fundamental part of a free market economy. Competition is believed to bring many posi­tive effects to both society and the marketplace by ensuring that products and services held in demand are placed on the market at a price that con­sumers are willing to pay. Furthermore, competition results in product effi­ciency. Competing companies are constantly aiming to lower their prices, as their positioning on price is a major marketing device, which could deter­mine their chances to stay in that marketplace. Another benefit of workable competition is that it brings a dynamic to the marketplace and stimulates the product development - since the producers will constantly develop and... (More)
The existence of workable competition in the marketplace is a fundamental part of a free market economy. Competition is believed to bring many posi­tive effects to both society and the marketplace by ensuring that products and services held in demand are placed on the market at a price that con­sumers are willing to pay. Furthermore, competition results in product effi­ciency. Competing companies are constantly aiming to lower their prices, as their positioning on price is a major marketing device, which could deter­mine their chances to stay in that marketplace. Another benefit of workable competition is that it brings a dynamic to the marketplace and stimulates the product development - since the producers will constantly develop and in­vest in new products or services as a result of the competition, and in a bid to win the consumers' business. Competition law aims to protect the competition in a free market economy by promoting competition, which will be effective and undistorted. This enables the public to receive as many benefits from the competition as is possible. The key objective of the EC Competition policy is said to be the protection of competition, since it facilitates the integration within the common market and also enables the consumers to benefit from the worka­ble competition. One of the most fundamental rules regarding competition law in the EC is Article 82 EC-treaty, which outlaws dominant companies from abusing their strong position in the mar­ket, since this can result in hin­dering the maintenance of workable competi­tion and makes the market inef­fective. During recent years there has been criticism as regards how Article 82 is applied by the Commission and the European Courts. A number of people think that too much emphasis is put in the protection of competitors rather than competition itself - even in cases where the dominant undertaking's conduct might benefit consumers and thereby undermine the EC competi­tion policy. However, some of the criticism has been justified. The Commis­sion and the Courts have, when applying Article 82 EC-Treaty, shown clear features of unpredictability and there has been a tendency among the au­thorities to outlaw some of the actions made by a dominant company - without looking into its effect on the competition, or to consumers. More­over, companies have been given the burden of having to prove that their actions are not anti-com­petitive. In addition to this, the Commission and the Courts have often stated that dominant companies have a special responsi­bility not to let their conduct impair the undistorted competition within the common market. As a result of the criticism, the Commission undertook a review of the pol­icy behind Article 82 and published a Discussion paper, to explain and de­clare the key objectives behind the Article. In the Discussion paper, the Commission stated that it was the protection of the competition and the con­sumer welfare that was its key concern, and that the Commission aimed to start applying a more effect based approach when applying article 82, to ensure that it is competition, and not competitors, that is protected. At the time of the Commission's review the Microsoft case was also taking place. This case is considered to be a landmark, not only because of the ex­tremely high fine imposed or the monopolistic position the undertaking was considered to have, but because the Commission and the CFI were given a chance to apply their new policy. During the Microsoft case, the Commis­sion and the CFI applied the competition policy that was expressed in the Discussion paper, meaning that the protection of the competition was put first, as a way to maintain a high degree of consumer welfare. Microsoft was found to have abused its dominant position on the common market by de­voting itself to anti-com­petitive actions which had a detrimental effect on other undertakings' in­centives to innovate, whilst having an excluding effect on the market which decreased the competition and therefore the range of products on the market. These factors combined were also deemed to have a detrimental effect on the consumers. On the basis of this, the conclusion when it comes to Article 82, is that it aims to protect the consumers and not the com­petitors, even if there has been a great uncertainty about this before. (Less)
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author
Lundin, Sara
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Konkurrensrätt, EG-rätt
language
Swedish
id
1559909
date added to LUP
2010-03-08 15:55:24
date last changed
2010-03-08 15:55:24
@misc{1559909,
  abstract     = {The existence of workable competition in the marketplace is a fundamental part of a free market economy. Competition is believed to bring many posi­tive effects to both society and the marketplace by ensuring that products and services held in demand are placed on the market at a price that con­sumers are willing to pay. Furthermore, competition results in product effi­ciency. Competing companies are constantly aiming to lower their prices, as their positioning on price is a major marketing device, which could deter­mine their chances to stay in that marketplace. Another benefit of workable competition is that it brings a dynamic to the marketplace and stimulates the product development - since the producers will constantly develop and in­vest in new products or services as a result of the competition, and in a bid to win the consumers' business. Competition law aims to protect the competition in a free market economy by promoting competition, which will be effective and undistorted. This enables the public to receive as many benefits from the competition as is possible. The key objective of the EC Competition policy is said to be the protection of competition, since it facilitates the integration within the common market and also enables the consumers to benefit from the worka­ble competition. One of the most fundamental rules regarding competition law in the EC is Article 82 EC-treaty, which outlaws dominant companies from abusing their strong position in the mar­ket, since this can result in hin­dering the maintenance of workable competi­tion and makes the market inef­fective. During recent years there has been criticism as regards how Article 82 is applied by the Commission and the European Courts. A number of people think that too much emphasis is put in the protection of competitors rather than competition itself - even in cases where the dominant undertaking's conduct might benefit consumers and thereby undermine the EC competi­tion policy. However, some of the criticism has been justified. The Commis­sion and the Courts have, when applying Article 82 EC-Treaty, shown clear features of unpredictability and there has been a tendency among the au­thorities to outlaw some of the actions made by a dominant company - without looking into its effect on the competition, or to consumers. More­over, companies have been given the burden of having to prove that their actions are not anti-com­petitive. In addition to this, the Commission and the Courts have often stated that dominant companies have a special responsi­bility not to let their conduct impair the undistorted competition within the common market. As a result of the criticism, the Commission undertook a review of the pol­icy behind Article 82 and published a Discussion paper, to explain and de­clare the key objectives behind the Article. In the Discussion paper, the Commission stated that it was the protection of the competition and the con­sumer welfare that was its key concern, and that the Commission aimed to start applying a more effect based approach when applying article 82, to ensure that it is competition, and not competitors, that is protected. At the time of the Commission's review the Microsoft case was also taking place. This case is considered to be a landmark, not only because of the ex­tremely high fine imposed or the monopolistic position the undertaking was considered to have, but because the Commission and the CFI were given a chance to apply their new policy. During the Microsoft case, the Commis­sion and the CFI applied the competition policy that was expressed in the Discussion paper, meaning that the protection of the competition was put first, as a way to maintain a high degree of consumer welfare. Microsoft was found to have abused its dominant position on the common market by de­voting itself to anti-com­petitive actions which had a detrimental effect on other undertakings' in­centives to innovate, whilst having an excluding effect on the market which decreased the competition and therefore the range of products on the market. These factors combined were also deemed to have a detrimental effect on the consumers. On the basis of this, the conclusion when it comes to Article 82, is that it aims to protect the consumers and not the com­petitors, even if there has been a great uncertainty about this before.},
  author       = {Lundin, Sara},
  keyword      = {Konkurrensrätt,EG-rätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Vad är skyddsintresset bakom artikel 82 - konsumenterna eller konkurrenterna?},
  year         = {2008},
}