Abstract

http://ssrn.com/abstract=1541928
 
 

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Single-Firm Conduct: A Discipline in Search of Itself (Try with Google?)


Roberto Pardolesi


Libera Università degli Studi Sociali (LUISS) Guido Carli

Luca Arnaudo


Scuola Superiore Sant'Anna di Pisa; Government of the Italian Republic (Italy) - Italian Competition Authority

January 25, 2010


Abstract:     
This paper analyzes US and EU antitrust policies towards abusive unilateral conduct pursued by a dominant firm and strongly criticize them, aiming at finding a more reliable assessment of the basic issues of consumer's exploitation and rival's exclusion. In fact, the discipline of unilateral conduct denounces widespread inconsistencies related to its conceptual foundations. The American side does not recognize exploitation as a form of abusive conduct for the dominant firm: excessive pricing is no issue in the US antitrust environment, and Supreme Court jurisprudence from Trinko to linkLine makes crystal clear that setting a more-than-competitive price not only escapes prohibition, but is the award reserved for the winners of the struggle in the market arena. Article 82 (a) of the EC Treaty forbids the imposition of unfair purchase or selling prices or other unfair trading conditions, but Commission's case law and policy statements (e.g. the 2008 Guidance Paper on Commission enforcement priorities in applying Article 82) have greatly emphasized exclusionary effects, with exploitative effects appearing to be little more than a sideshow. This practical emasculation of the relevant discipline makes little sense either in economic or legal terms, and leaves the overall conceptual picture in a state of complete disarray, with direct consequences on the legal enforcement. The many antitrust issues arising from the Google Books Settlement case are a good occasion to verify the sustainability of the antitrust policy towards single-firm conduct previously discussed: more in details, the risks of future excessive pricing stemming from the approval of the settlement led many commentators, as well as the US Department of Justice, to reconsider the award-of-the-winner theory. The paper also addresses this topic and try to offer a sound overview of it.

Number of Pages in PDF File: 24

Keywords: Monopolization, Abuse of Dominant Position, Exploitative Abuses, Exclusionary Abuses, Google Book Settlement, Consumer's harm

JEL Classification: D40, K21, K41, K42, L4

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Date posted: January 25, 2010 ; Last revised: October 27, 2012

Suggested Citation

Pardolesi, Roberto and Arnaudo, Luca, Single-Firm Conduct: A Discipline in Search of Itself (Try with Google?) (January 25, 2010). Available at SSRN: http://ssrn.com/abstract=1541928 or http://dx.doi.org/10.2139/ssrn.1541928

Contact Information

Roberto Pardolesi (Contact Author)
Libera Università degli Studi Sociali (LUISS) Guido Carli ( email )
00162 Rome, Roma
Italy
Luca Arnaudo
Scuola Superiore Sant'Anna di Pisa ( email )
Biblioteca Scuola Superiore Sant'Anna
Piazza Martiri della Liberta, n. 33
Pisa, 56127
Italy
Government of the Italian Republic (Italy) - Italian Competition Authority ( email )
Piazza G. Verdi 6/a
Roma, 00184
Italy
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