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Reading Room: Abuse of power

For readings relating to abuse of dominance/misuse of market power in Australia visit the Australian reading room.

For information about the Australian law regarding the abuse of market power see: Misuse of Market Power page.

This page provides links to select books and papers relating to abuse of dominance generally and in jurisdictions other than Australia; it is currently limited in scope but will be expanded in due course.

Books

2015

Frederik van Doorn, The Law and Economics of Buyer Power in EU Competition Policy (eleven international publishing, 2015)

'The trend of retail concentration across the European Union has raised concerns on the buyer power that retailers may have in the relation with their suppliers. Following calls that the changing nature of competition demands a change in EU competition policy, this book investigates whether there is a ‘gap’ in current EU competition law concerning the potential harmful effects of buyer power from an economic efficiency perspective. Using a Law and Economics approach, the author identifies the potential concerns and assesses whether they can be addressed under the existing rules. While some critical comments are in place with regard to the consumer welfare standard that is applied, the author’s analysis does not indicate that the current substantive legal framework of EU competition law is unfit to address the (potential) harmful effects of buyer power.'

2013

Robert O'Donoghue and Jorge Padilla, The Law and Economics of Article 102 TFEU (Bloomsbury, 2nd edn, 2013)

'The Law and Economics of Article 102 TFEU is a comprehensive, integrated treatment of the legal and economic principles that underpin the application of Article 102 TFEU to the behaviour of dominant firms. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and unlawful discrimination are treated in detail through a review of the applicable economic principles, the case law and decisional practice and more recent economic and legal writings. In addition, the major constituent elements of Article 102 TFEU, such as market definition, dominance, effect on trade and applicable remedies are considered at length. Jointly authored by a lawyer and an economist, The Law and Economics of Article 102 TFEU contains an integrated approach to the legal and economic principles that frame policy in this major area of competition law. Although written primarily with practitioners and in-house lawyers in mind, it is essential reading for anyone with an interest in competition law enforcement against monopoly behaviour. '

 

Articles

2017

2015

Annalies Azzopardi, ''Dominant Position': A Term in Search of Meaning' (2015) Global Antitrust Review (PDF)
'Article 102 of the Treaty on the Functioning of the European Union applies only to dominant undertakings. However the definition of the term ‘dominant position’ originally established by the Court of Justice of the European Union poses some problems of interpretation. There have been many attempts at rationalising this definition, including attempts to equate it to the economic concept of ‘substantial market power’. This article considers the definition of ‘dominant position’, and assesses the problems associated with the current legal definition. It reviews the attempts made to make sense of the legal definition and examines whether in reality ‘dominance’ amounts to ‘substantial market power’.'

2014

Wouter PJ Wils, The Judgment of the EU General Court in Intel and the So-Called 'More Economic Approach' to Abuse of Dominance (19 September 2014) 37(4) World Competition: Law and Economics Review 405-434. Available at SSRN: https://ssrn.com/abstract=2498407
Abstract: This paper discusses the judgment of the EU General Court of 12 June 2014 in the Intel case. It argues that the EU case-law on the use of exclusivity rebate systems by undertakings occupying a dominant position is economically sound, and that the criticism directed at this case-law is ill-founded.

2010

Abel M Mateus, 'Predatory Pricing: A Proposed Structured Rule of Reason' (22 March 2010)
Abstract: Exclusionary practices are at the heart of abuses of dominance or monopolization. Predatory pricing is one of the most important exclusionary practices, because it lays the foundations of the most important foreclosure theories. Post-Chicago theories of predatory pricing are based on asymmetric imperfect information, imperfections in the capital markets or a race down the learning curve. However, these theories have not yet trickle down to tests in competition law analysis. This paper presents a new structured rule of reason for identifying predatory pricing largely based on finance theory. These are methods currently used in management for deciding investment and market strategies. We show that the Brooke-Akzo tests are a special case of our test. We also define rigorous criteria to judge cases of weakening competitors that could reduce substantially social welfare. Our test carries over trivially to cases of margin squeeze. We thus shed some light on some of the problems confronted by the European Commission and European Courts in the analysis of these cases and how the proposed rule would solve most of them.

2008

Spencer Weber Waller, Hearing But Not Listening: Comparative Competition Law and the DOJ Monopoly Report, (6 November 2008), Global Competition Policy (October 2008))
Abstract: The Department of Justice ("DOJ") monopoly report is enormously disappointing for a number of reasons. The Federal Trade Commission ("FTC") was wise to participate in this important project, but equally wise to distance itself from the final work product. The final report represents a serious effort, but reads in too many places like a justification for a record of inaction by the DOJ and an attempt to lock in future administrations to a similar course.

2005

Damien Geradin, Paul Hofer, Frederic Louis, Nicolas Petit and Mike Walker, 'The Concept of Dominance in EC Competition Law' (Research Paper on the Modernization of Article 82EC, July 2005)
Abstract: The first prong of Article 82 of the EC Treaty, which prohibits abuses of a dominant position, requires, prior to the identification of abusive behaviour, evidence that the firm under scrutiny enjoys a dominant position. Surprisingly, this issue seems to be sometimes overlooked. Enforcers, practitioners and scholars have recently paid greater attention to the concept of abuse than to the question of dominance when discussing Article 82 EC. This should not, however, be interpreted as a sign that the law of dominance is clear. Quite to the contrary, the concept of dominance raises a wide array of questions which are discussed in the sections that follow.

 

Reports and Guidance

Europe

United States