As usual in the area of abuse of dominance, a number of observers have (again) lamented that in Sot. Lelos kai Sia EE et al. v. GlaxoSmithKline AEVE (GSK), Article 82 EC has been brought a step further, and that the Commission, NCAs and national courts are now be able to sanction new forms of abuses.
In my opinion, there is nothing revolutionary in this case. The Court recalls that Article 82 EC applies to output limitation strategies of monopolies (something which BTW was present in some Commission decisions, such as the P&I decision). In line with basic economic theory, the judgment thus embodies the idea that a monopoly shall not refuse to satisfy orders of customers, provided the latter are ready to compensate for its costs (the allocative inefficiency of the monopoly, see triangle above).
This interpretation, which suggests that the Court's judgment is based on elementary principles of economics, tempers the hackneyed criticism of the judgment as a new iteration of the market integration "dogma". It also suggests that the ruling is not sector-specific, but applies to sectors other than pharmaceuticals.
Of course, there are areas of concerns (e.g. remedies). But I don't share the clichéd view that the ECJ ruling is - and a fortiori that all Article 82 EC rulings are - nonsensical.
The slides of Jose Luis Buendia Sierra's excellent presentation are now available on the GCLC website.