Abuse of Dominant Position: New Interpretation, New Enforcement Mechanisms? (eBook)

Abuse of Dominant Position: New Interpretation, New Enforcement Mechanisms? 6
Table of Contents 9
List of Contributors 10
The Reform of Article 82 EC in the Light of the “ Economic Approach” 11
1 Introduction 11
2 The Discussion Paper in context 13
3 The objective of Article 82 EC 19
4 The “as efficient competitor”-test 27
5 Conclusion 29
Is there a Role for Market Definition and Dominance in an effects- based Approach? 31
1 Introduction 31
2 Criticism of the current assessment of unilateral exclusionary practices under Article 82 of the EC Treaty 33
3 Towards the adoption of the new effects-based approach 37
4 Getting rid of dominance? The long path from dominance to substantial market power 39
5 Assessment of substantial market power in the new effects-based approach: How current assessment methodology may change 46
6 Implications of the shift towards substantial market power 50
7 Substantial market power, consumer welfare and significant competitive harm: Some flaws in the new effects- based approach 57
8 Conclusions 63
Abuse below the Threshold of Dominance? Market Power, Market Dominance, and Abuse of Economic Dependence 65
1 Introduction 65
2 Market power 67
3 Economic dependence 71
4 Dominant position under Article 82 EC 81
5 Abusive practices 94
6 Concluding remarks 98
Efficiency Defence in Article 82 EC 99
1 Introduction 99
2 Defining abusive conduct 100
3 The proposed efficiency defence 104
4 Shift in competition policy 105
5 Limits to the competition policy reform 109
6 Application of Article 81 (3) EC 112
7 The Reaction of the Community Courts 114
8 Passing-on requirement 115
9 Elimination of competition and efficiency defence 119
10 Comparison with merger control 123
11 Conclusion 124
From Courage v Crehan to the White Paper – The Changing Landscape of European Private Enforcement and the Possible Implications for Article 82 EC Litigation 126
1 Introduction 126
2 The public value of private action 126
3 The (under) development of private enforcement in Europe 129
4 Obstacles, challenges and proposed reforms 134
5 The interplay between private enforcement and Article 82 EC 140
6 Concluding remarks 144
Private Enforcement – Is Article 82 EC special? 145
1 Introduction 145
2 Private enforcement 146
3 Article 82 EC and action for damages 152
4 Should the leniency programme be extended to Article 82 EC? 165
5 Costs as a disincentive to claim – or can they become an incentive? 166
6 Modernisation of Article 82 EC and the consequences for private enforcement 167
7 Conclusion 170
8 Post-script 171
Private Incentive, Optimal Deterrence and Damage Claims for Abuses of Dominant Positions The Interaction between the Economic Review of the Prohibition of Abuses of Dominant Positions and Private Enforcement 172
1 Introduction 172
2 The concepts of individual harm and harm to competition 175
3 The concept of legal standing 176
4 Incentives and the optimal level of enforcement 177
5 Potential private enforcers of Article 82 EC 178
6 Conclusions 194
The Role of Consumer Associations in the Enforcement of Article 82 EC 197
1 Introduction 197
2 Representative action shall not remove individual right of action 200
3 Association’s standing 203
4 Distribution of compensation 205
5 Conclusion 209