Market Power in EU Antitrust Law

Description

The notion of market power is central to antitrust law. Under EC law, antitrust rules refer to appreciable restrictions of competition (Article 81(1) EC), the elimination of competition for a substantial part of the market (Article (81(3) EC), dominant positions (Article 82 EC) and substantial impediment to effective competition, in particular by creating or reinforcing a dominant position (Article 2 of the EC Merger Regulation). At first sight, only the concept of dominant position relates to market power but it is the aim of this book to demonstrate that the other concepts are directly linked to the notion of market power. This is done by reference to the case law of the EC Courts and the precedents of the European Commission and the author goes on to argue that for very good reasons (clarity and enforceability, among others) the rules should be interpreted in this way. Beginning with market definition, the book reviews the different rules and the different degrees of market power they incorporate. Thus it analyses the notion of 'appreciable restriction of competition' to find a moderate market power obtained by agreement among competitors to be the benchmark for the application of Article 81 EC. It then goes on to the concept of dominance under Article 82 EC, which is equivalent to substantial (or important) market power and then focuses on the old and new tests for EC merger control. Finally, it addresses the idea of elimination of competition in respect of a substantial part of the market (ex Article 81 (3) (b) EC), in which the last two types of market power (ex Article 82 and Ex ECMR) converge. To exemplify this, an in-depth study of the notion of collective dominance is made. The book concludes that a paradigm of market power exists under the EC antitrust rules that both fits with past practice and provides for a useful framework of analysis for the general application of the rules by administrative and - even more importantly - judicial authorities in the Member States, under conditions of legal certainty.

Luis Ortiz Blanco is a partner with Garrigues Abogados y Asesores Tributarios and a Lecturer on EC Competition and Trade Procedures at the College of Europe in Bruges.

As the European Commission's enforcement policy moves towards an economic approach, the identification of market power and how to deal with it is of immense importance. Market Power in EU Antitrust provides a comprehensive, timely and significant contribution to this difficult task by presenting a series of intriguing ideas. ...a very welcome addition to the literature. The book delves beneath the surface to offer new insights into the deeper issues of the principles below. While the scope of the book is limited to market power across the main European competition law provisions and the merger regulation, it has all the qualities one would hope to find in a first-rate modern legal treatise: it is scholarly, opinionated, thorough, clear and authoritative. -- Liza Lovdahl Gormsen * European Competition Journal, Volume 9, Number 3 * ...a valuable contribution for the enforcers of EU competition rules, ultimately the judicial authorities, which need not be expert economists. -- Vasiliki Brisimi * European Law Review, Volume 38(2) * The book contains a wealth of material and details...A very great deal of care has clearly been invested in the book and it is easy to find the relevant place. It is most welcome. -- Valentine Korah * World Competition Law and Economics Review * This is a very complex and detailed work indeed, which digs deeply to the very core of essential underlying principles of competition law, dissecting them even, bit by bit through citing massive jurisprudence of the Court and case-law of the European Commission. It is a very useful tool for any advanced practitioner who is trying to upgrade his knowledge and understanding... -- Andrej Fatur * World Competition Law and Economics Review, December 2014 *