The Market Power Element of Abuse of Dominance—Parallels and Differences in Attitudes—US and EU
Files
Description
US law prohibits monopolization and attempts and conspiracies to monopolize. EU law prohibits the abuse of a dominant position. In the 21st Century, these concepts are largely substitutes for one another. Both are meant to proscribe anticompetitive conduct by firms with dominance or monopoly power. On both sides of the ocean, mere possession of monopoly power is not in itself an abuse or violation, although in earlier times US courts and agencies flirted with the notion that possession of monopoly power was an actionable offense, and in the famous Alcoa case the Second Circuit came close to so holding. This essay reflects principally on contemporary parallels and differences between US and EC law. On both sides of the ocean, certain threads have long since been woven into the law, and therefore the essay begins with history. Second, the essay reflects on issues of proof, thresholds and presumptions. Third, the essay describes and assesses a draft document by an ICN working group concerning suggested best practices for identifying dominance/substantial market power. Finally, it concludes with a note on the integral nature of the market power/market effect analysis.
Source Publication
European Competition Law Annual 2007: A Reformed Approach to Article 82 EC
Source Editors/Authors
Claus-Dieter Ehlermann, Mel Marquis
Publication Date
2008
Recommended Citation
Fox, Eleanor M., "The Market Power Element of Abuse of Dominance—Parallels and Differences in Attitudes—US and EU" (2008). Faculty Chapters. 1236.
https://gretchen.law.nyu.edu/fac-chapt/1236
