'The Dominant Position and the Concept of Abuse'

in The German and Romanian Abuse of Market Dominance in the Light of Article 102 TFEU (Nomos, Baden-Baden, 2011)

22 Pages Posted: 29 Feb 2012 Last revised: 7 Apr 2017

Date Written: April 27, 2011


This sub-chapter explains the concept of abuse under EU competition law, in particular the distinction between exploitative and exclusionary abuses and the special responsibility of dominant undertakings not to abuse of their dominant position.

It seeks to question the objective concept of abuse and what might amount to methods different from those which condition normal competition and whether a subjective concept of abuse would not extend the area of application of EU competition law to unfair methods of competition and unfair hindrance of competitors. From Hoffman-LaRoche to Intel undistorted competition serves both the purpose of EU competition and the law against unfair competition amongst competitors and it would need further clarification, including proper delimitation by the EU courts.

It also draws parallels between the German concept of competition based on performance and competition based on merits as emphasized by the Act against Restraints of Competition, which is the public enforcement mechanism against anti-competitive practices, and the Act against Unfair Competition which is enforced by the courts via private litigation. This being said, the latter Act has as EU counterpart a Directive against unfair commercial practices.

This questions, however, whether the action against Intel would extend the ambit of competition intervention based on an objective concept of abuse to a subjective concept where internal strategies amount to unfair methods of competition. If these strategies aim to foreclose rivals and competition law is concerned about the 'viability' of competitors would this mean that in effect EU competition law protects or should competitors?

Keywords: EU competition law, concept of abuse, dominance, competition on the merits, Intel, undistorted competition

Suggested Citation

Chirita, Anca D., 'The Dominant Position and the Concept of Abuse' (April 27, 2011). in The German and Romanian Abuse of Market Dominance in the Light of Article 102 TFEU (Nomos, Baden-Baden, 2011). Available at SSRN: https://ssrn.com/abstract=2011758

Anca D. Chirita (Contact Author)

Durham University - Law School ( email )

Stockton Road
The Palatine Centre
Durham, County Durham DH1 3LE
United Kingdom
00441913342860 (Phone)
0044191 33 42801 (Fax)

HOME PAGE: http://www.dur.ac.uk/law/staff/?id=9664

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