Cleary Gottlieb associate Gianluca Faella contributed “The Efficient Abuse: Reflections on the EU, Italian and UK Experience” to the March 2016 issue of Competition Law & Policy Debate.
“Unlike other areas of competition law, which explicitly incorporate a theory of efficiencies, in many jurisdictions antitrust rules on abuse of dominance and monopolization do not provide for an efficiency justification. In the EU, restrictive agreements may be exempted if they satisfy the conditions laid down in Article 101(3) TFEU, and recital 29 of Regulation No. 139/2004 states that a merger leading to anticompetitive effects can proceed if the efficiencies it brings about counteract the potential harm to consumers. However, Article 102 TFEU seems to establish an absolute prohibition of abuses of dominance. The same is true in many Member States, whose substantive law is generally modelled on EU rules, and in jurisdictions outside the EU, such as the United States and Canada, even though the antitrust laws of some States provide for an efficiency defence of unilateral practices.”