Continental Drift in the Treatment of Dominant Firms: Article 102 TFEU in Contrast to § 2 Sherman Act

5. Article 102

Competition Law ◽

10.1093/law-ocl/9780198779063.003.0005 ◽

2018 ◽

Author(s):

Richard Whish ◽

David Bailey

Keyword(s):

European Union ◽

Internal Market ◽

Controversial Issue ◽

Substantial Part ◽

The European Union ◽

Member States ◽

Dominant Position ◽

Dominant Firms ◽

Article 102 Tfeu

This chapter discusses the main features of Article 102 of the Treaty on the Functioning of the European Union (TFEU), which is concerned with the abusive conduct of dominant firms. It begins by introducing the European Commission’s Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings. It then discusses the concept of undertaking, the requirement of an effect on trade between Member States, the concept of a dominant position and the requirement that any dominant position must be held in a substantial part of the internal market. The chapter also considers the meaning of abuse of a dominant position, which is a complex and controversial issue. A discussion of the defences to allegations of abuse is followed by a brief look at the consequences of infringing Article 102.

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Continental Drift in the Treatment of Dominant Firms

10.1093/oxfordhb/9780199388592.013.0008 ◽

2014 ◽

Author(s):

Maarten Pieter Schinkel ◽

Pierre LaRocuhe

Keyword(s):

Continental Drift ◽

Dominant Firms

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Protecting Competition in the American Economy: Merger Control, Tech Titans, Labor Markets

The Journal of Economic Perspectives ◽

10.1257/jep.33.3.69 ◽

2019 ◽

Vol 33 (3) ◽

pp. 69-93 ◽

Cited By ~ 11

Author(s):

Carl Shapiro

Keyword(s):

Labor Markets ◽

The United States ◽

Merger Control ◽

Antitrust Enforcement ◽

The Past ◽

Sherman Act ◽

The Supreme Court ◽

Dominant Firms ◽

Monopsony Power ◽

American Economy

Accumulating evidence points to the need for more vigorous antitrust enforcement in the United States in three areas. First, stricter merger control is warranted in an economy where large, highly efficient and profitable “superstar” firms account for an increasing share of economic activity. Evidence from merger retrospectives further supports the conclusion that stricter merger control is needed. Second, greater vigilance is needed to prevent dominant firms, including the tech titans, from engaging in exclusionary conduct. The systematic shrinking of the scope of the Sherman Act by the Supreme Court over the past 40 years may make this difficult. Third, greater antitrust scrutiny should be given to the monopsony power of employers in labor markets.

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4 Abuse of Dominance

EU Competition Law and Economics ◽

10.1093/law-ocl/9780199566563.003.0004 ◽

2012 ◽

Author(s):

Geradin Damien ◽

Layne-Farrar Anne ◽

Petit Nicolas

Keyword(s):

Price Discrimination ◽

Relevant Market ◽

Dominant Firm ◽

Dominant Position ◽

Dominant Firms ◽

Economic Tools ◽

Firm Conduct ◽

Abuse Of Dominance ◽

Article 102 Tfeu

This chapter focuses on Article 102 TFEU, which prohibits dominant firms from abusing their dominant position. Two elements need to be present for Article 102 to apply to a given firm conduct: (i) that firm must be dominant on one or several markets and (ii) it must have abused that dominant position. The first step in the assessment of dominance is to define the relevant market(s). Once such markets have been defined, various economic tools can be used to determine the extent to which one or several firms are dominant on them. For Article 102 to apply, it must be demonstrated that the dominant firm has committed one or several abuses on the market(s) in question. Article 102 prohibits two main categories of abuses: exclusionary abuses (Art 102(b) and (d)) and exploitative abuses (Art 102(a)). Article 102 also prohibits certain forms of price discrimination.

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