The Concept of Dominance in Article 82

Abstract

The concept of dominance in EC competition law is a mixture of criteria relevant to determining the presence of market power and criteria relevant to finding commercial power. The current concept of dominance is consistent with an ordoliberal interpretation of Article 82 whereby dominant firms have special responsibilities because their presence in the market damages competition as an institution. The Commission appears intent upon narrowing the concept of dominance to instances where an undertaking has substantial market power. The effect of this is that the scope of application of Article 82 is narrowed down considerably. However the Commission's position is enigmatic because the Discussion Paper is an ambiguous mixture of passages that restate the current law and passages that seem to develop new approaches, with no explanation of where the policy changes occur or an explanation of why they take place. In fact, on another reading, the Discussion Paper seems to widen the concept of dominance. The failure to communicate the nature and scope of the reform process in a clear manner is to be regretted because the central theme (that dominance means substantial market power) is a promising premise to accompany the reform of the abuse doctrine.

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