The Legal Periphery of Dominant Firm Conduct

Abstract:     
This essay explores two different but related problems and how U.S. antitrust law and EU competition law approach them. The first is the offense of attempt to monopolize, which concerns the acts that a firm that is not yet dominant might undertake in order to become dominant. The second is the offense of monopoly or dominant firm leveraging, which occurs when a firm uses its dominant position in one market to cause some kind of harm in a different market where it also does business.

The language of EU and U.S. provisions concerning dominant firms provokes one to think that the differences between them are significant. The Sherman Act includes an express attempt to monopolize claim while Article 82 does not. Article 82's "abuse of dominance" language invites in a concept of non-monopolistic leveraging while the U.S. antitrust law is moving in the opposite direction.

In practice, the differences are not so great, although they should not be minimized either. Further, when one looks at the full range of competition laws and not just the provisions respecting unilateral conduct by dominant firms, then the differences appear to result more from the happenstance of statutory drafting than from significant differences concerning the scope of unlawful single-firm conduct.

Number of Pages in PDF File: 24

Keywords: Antitrust, Competition, Competition Law, Monopolization, Dominant firm, Leverage, Industrial Organization, Economics

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