The Role of Intent in Abuse of Dominance and Monopolization

Abstract

Under Section 2 of the Sherman Act and Article 102 TFEU, antitrust decision-makers use firms’ intent for evidentiary purposes, i.e., to understand if the conduct under their scrutiny is likely to harm competition. This practice raises two main concerns. First, one can question – as the international community has often done – if the analysis of firms’ intent may actually reveal the competitive impact of a given behaviour. Second, one may discuss – and this is the original contribution that the chapter offers – if and why antitrust decision-makers should ever be permitted to use firms’ intent to prove the occurrence of a conduct capable of harming competition under Section 2 and Article 102. The chapter answers these questions, while giving food for thought for future research.

Keywords: intent, economic rationality, subjective element, evidence, monopolization, abuse of dominance

JEL Classification: K21