An Effects-Based Approach to Article 102: A Response to Wouter Wils

In his defence of the General Court's Intel judgment as 'effects-based' and 'economically sound' Wouter Wils has articulated an interpretation of Article 102 which rejects a case-by-case approach as inconsistent with the European Treaties and instead favours the uniform application of clear a priori legal rules that are easily administrable and assign the risks of non-compliance to dominant firms. Wils argues that this approach is best designed to protect the discovery value of competition. Wils' article identifies many of the key issues concerning how competition law, and Article 102 in particular, should be applied. In this article the authors examine Wils' analysis. They first address whether the European Treaties preclude a case-by-case approach under Article 102 and conclude that they do not. They then note that, even if early regulatory intervention has the virtues of predictability and ease of administration, it fails to take into account the effects of both the conduct it seeks to regulate and the effects of such regulation. As a result, they conclude that the goal of protecting competition is best served by intervention only when there is a risk to competition based on the most likely assessment of the effects of the conduct concerned.