Three questions surround the interpretation and application of Article 82 of the EC Treaty. What is its underlying purpose? Is it necessary to demonstrate actual or likely anticompetitive effects on the market place when applying Article 82? And how can dominant undertakings defend themselves against a finding of abuse? Instead of the usual discussion of objectives, Liza Lovdahl Gormsen questions whether the Commission's chosen objective of consumer welfare is legitimate. While many Community lawyers would readily accept and indeed welcome the objective of consumer welfare, this is not supported by case law. The Community Courts do not always favour consumer welfare at the expense of economic freedom. This is important for dominant undertakings' ability to advance efficiencies and for understanding why the Chicago and post-Chicago School arguments cannot be injected into Article 82.

'The author is certainly right in her diagnosis that the internal struggles within the Commission have resulted in a Guidance Paper that is torn between faithfulness to the existing case law and the desire of parts of the Commission to advance the more economic approach; and she is also right in pointing out that this vacillation is not conducive to legal certainty.'

Florian Wagner-von Papp Source: Common Market Law Review