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Archive for July 30th, 2021

NEW PAPER | What is an Abuse of a Dominant Position? Deconstructing the Prohibition and Categorizing Practices

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I have uploaded on SSRN a new paper on the notion of abuse from a comparative perspective (see here). It will be published in the Research Handbook on Abuse of Dominance and Monopolization, jointly edited by Pinar Akman, Or Brook and Konstantinos Stylianou (all based at the University of Leeds) and forthcoming with Elgar next year. I am really grateful to them for the invitation to take part in the project.

The paper seeks to provide an overview of the notion of abuse (broadly conceived) from a comparative perspective. It focuses, in particular, on the EU and US case law and administrative practice.

The first point I make is that the notion of ‘competition on the merits’ is not particularly helpful. Not all potentially abusive strategies are inherently anticompetitive or inherently pro-competitive; most conduct may or may not be caught by the prohibition depending on the specific circumstances of each case. It is not a surprise, against this background, that the evaluation of the economic and legal context has acquired an increasingly relevant role in the case law.

Second, the paper seeks to tease out, systematically, the constituent elements of the notion of abuse. The paper differentiates between practices based, inter alia, on whether they are price-based or not; whether they involve the leveraging or the strengthening of a dominant position; and, as far as leveraging strategies are concerned, whether the relevant markets are horizontally or vertically related.

On the basis of this exercise it is possible to understand the controversies and frictions that have become so frequent in this field. Like practices are not always treated alike by courts and/or authorities. There are also ‘grey areas’ in between the most common categories, as Slovak Telekom has recently shown.

Finally, the piece touches upon potentially abusive practices in digital markets. Intervention against online platforms is remarkable (and more intrusive and far-reaching that traditional competition law enforcement) in that it gets into the design of products and business models. Traditionally, authorities were reluctant to venture into such territory. Not anymore. Just compare and contrast the EU Microsoft saga, which left the firm’s business model untouched and Android, which challenged the core of Google’s monetisation strategy.

Given the paucity of precedents, it is not surprising that questions about the applicable legal test in relation to these practices have proved contentious. Slovak Telekom already suggested an approach to navigate the issue (as explained here, the applicable legal test would hinge on whether, in effect, intervention would force the dominant firm to conclude a contract with third parties with which it has chosen not to deal).

I look forward to your comments (as usual, nothing to disclose).

Written by Pablo Ibanez Colomo

30 July 2021 at 4:10 pm

Posted in Uncategorized