*This article is an automatic translation of the original article, provided here for your convenience. Read the original article.
The abuse of a dominant position under European Union (EU) competition law has been the subject of numerous studies. The summary studies brought together by three academics from the European University Institute in Florence following a training session for judges in 2015 take stock of the main recent developments in this area.
The resulting collective work brings together eight contributions analysing the regime and scope of Article 102 TFEU on the prevention of abuse of a dominant position in the EU, including comparative law analyses of German, Austrian, Italian and UK law.
In the introduction, L. Parcu, G. Monti and M. Botta point out that the definition of a dominant position has been constant since the Hofmann-La Roche judgment of 1979. Furthermore, the European Commission has recognised that some of its decisions may have resulted in market definitions that were too narrow and not sufficiently reasoned, and in 1997 it published its Notice on the definition of the relevant market for the purposes of Community competition law (97/C 372/03, OJ C 372, 9.12.1997, pp. 5-13). On the enforcement side, the authors note that, as a result of the decentralisation of competition law enforcement, an increasing number of decisions sanctioning abuses of dominant positions are being adopted by the national competition authorities of the Member States. As is well known, these decisions are increasingly the subject of actions for damages before national courts.
Three trends emerge from the implementation and interpretation of Article 102 TFEU. A first trend is the analysis of intent in the examination of abuse of dominance. Indeed, despite the traditionally objective nature of the concept of abuse of a dominant position, EU and national courts increasingly take into account the anti-competitive intent of the dominant undertaking. A second trend is for national courts and the Union courts to recognise new forms of abuse, for example in litigation considered purely dilatory. A third trend is the decentralisation of the application of Article 102 TFEU. This trend is of course characteristic of private enforcement before national courts. All these trends will a priori continue to develop in the years to come.
Pier Luigi Parcu and Maria Luisa Stasi analyse in detail the role of the moral element (intention) in the assessment of conduct under Article 102 TFEU. The insistence on the objective nature of the abuse of a dominant position is presented as pure "rhetoric". The authors deplore the lack of sufficient or clear guidance in Union law as to the role of the moral element in the assessment of conduct under Article 102 TFEU, both in regulation and in case law. They call for a public discussion to be launched on the place of the mental element in infringements of EU competition law.
Among the various contributions, Richard Whish explains in particular that the development of autonomous actions in the United Kingdom is due to the insufficient nature of public enforcement in this State. The author concludes that private enforcement is often very effective in practice.
Florian Schuhmacher examines the role of presumptions of dominance in German and Austrian competition law. He considers that such presumptions are useful in reducing the burden of proof on competition authorities or plaintiffs in proceedings. However, it points out that the market share thresholds should be only a starting point for the assessment.
Mario Siragusa examines new forms of abuse of dominance and abuse of rights in Italy, while Rozeta Karova and Marco Botta study the sanctions of excessive pricing of energy prices by comparing the approach of the European Commission and that of the national competition authorities.
Although the book provides a comprehensive and up-to-date overview of the main developments in the law applicable to abuse of a dominant position, and as such is very useful, it is regrettable that there is no common conclusion to all the chapters.
