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Prieto, Catherine --- "Anticipated Enforcement in France of the Commission’s Guidance on Article 82" [2011] ELECD 295; in Pace, Federico Lorenzo (ed), "European Competition Law: The Impact of the Commission’s Guidance on Article 102" (Edward Elgar Publishing, 2011)

Book Title: European Competition Law: The Impact of the Commission’s Guidance on Article 102

Editor(s): Pace, Federico Lorenzo

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447738

Section: Chapter 6

Section Title: Anticipated Enforcement in France of the Commission’s Guidance on Article 82

Author(s): Prieto, Catherine

Number of pages: 28

Extract:

6. Anticipated enforcement in France
of the Commission's Guidance on
Article 82
Catherine Prieto

1 INTRODUCTION

In France, the Guidance on the Commission's enforcement priorities in
applying Article 82 EC is not seen as a radical change, but rather as a
slow and constantly maturing process. For many years, those working on
modernizing European competition policy have recommended an effects-
based approach instead of an excessively formalistic approach. In France,
as well as in other European member states, debates have been heated. The
main drawback is well known: a lack of legal certainty for undertakings
as a result of a required auto-evaluation. But the benefit is considerable:
greater efficiency thanks to improved and better-targeted implementation.
The Commission's objective has been properly understood, namely to
find the right balance to limit the drawbacks as much as possible. In this
regard, the development of commitments made the changes more accept-
able to undertakings, and their lawyers in France have seized the advan-
tages of this new kind of negotiated regulation. In contrast with static legal
certainty, what we have now is a dynamic process in which the undertak-
ing progressively produces its own legal certainty. But undertakings have
to learn how to negotiate with the competition authorities as soon as a
competition law concern is expressed. Unilateral practices are the last area
to be concerned by this inexorable movement towards a modern economic
approach. Thus, the content of the Guidance did not come as a surprise in
...