Abusive Practices in Competition Law

Abusive Practices in Competition Law tackles the difficult questions presented to competition lawyers and economists regarding abusive practices: where and when is the red line crossed in competitive advances? When is a company explicitly dominant? How do you handle those who hold superior bargaining power over others but are not classed as dominant?

Including analysis of the EU as well as individual nations such as the USA, Germany, France, Italy, China, Japan, Australia and developing countries, this book presents the state of the art in abusive practices in competition law research. Drawing on a variety of experiences from different jurisdictions, the authors answer the most fundamental questions concerning abusive practices, with a special focus placed on superior bargaining power, economic dependence and unconscionable conduct as thresholds for competition law interventions. Key areas such as market definition in platform markets, use of presumption in antitrust law, commitment procedures and aggregate concentration concerns are all discussed within this context.

Essential reading for competition lawyers and economists, Abusive Practices in Competition Law gives comprehensive advice and insight for those dealing with antitrust concepts and practical cases of abusive conduct.

List of contributors

Foreword: Important Divergences
Paul Nihoul and Iwakazu Takahashi

Introduction
Rupprecht Podszun and Fabiana Di Porto

PART I: FUNDAMENTAL QUESTIONS OF DOMINANCE AND ABUSE
1. The ordoliberal concept of “abuse” of a dominant position and its impact on Article 102 TFEU
Peter Behrens

2. The European Commission’s enforcement of abuse cases. A statistical analysis
Lorenz Marx

3. Presumptions and short-cut rules in abuse regulation: (Where) do EU and U.S. antitrust approaches meet?
Pieter Van Cleynenbreugel

4. The pitfalls of market definition: Towards an open and evolutionary concept
Rupprecht Podszun

5. Exploitative prices in European competition law
Antonio Robles Martín-Laborda

6. All’s well that ends well? Abuse regulation in the wake of the financial crisis. The interplay between regulation and the application of competition law to the financial sector
Luís Silva Morais and Lúcio Tomé Feteira

7. The application of Article 102 TFEU in the EU energy sector: A critical evaluation of commitments
Maria Ioannidou

Part II: Superior Bargaining Power, ECONOMIC DEPENDENCE AND ABUSE
8. Abuse without dominance in competition law: Abuse of economic dependence and its interface with abuse of dominance
Mor Bakhoum

9. Superior Bargaining power: Dealing with aggregate concentration concerns
Thomas K. Cheng and Michal S. Gal

10. Unilateral conduct by non-dominant firms: A comparative reappraisal
Florian Wagner-von Papp

11. Restraining bargaining power through competition law: Superior bargaining position regulation in Japan as compared with the EU
Toshiaki Takigawa

12. Ex-ante and ex-post control of buyer power
Stefan Thomas

Part III: National Experiences with the Regulation of Abusive Conduct
13. The application of the Chinese Antimonopoly Law to state-owned enterprises
Fang Xiaomin

14. Unconscionable conduct in the context of competition law with special reference to retailer / supplier relationships within Australia
Allan Fels and Matthew Lees

15. The Italian regulation against the abuse of economic dependence at the crossroads
Valeria Falce

16. Unconscionable conduct in France
David Bosco

17. Comparative analysis of the Japanese Subcontract Act and the regulations on unfair trade practices in the EU: Focus on the grocery industry
Kazuhiko Fuchikawa

18. An alternative perspective for assessing abuse of dominance in emerging markets
Abayomi Al-Ameen

19. Abuses of dominant and non-dominant position. A tale of (ir)reconcilable views?
Fabiana Di Porto

Index