Advances in Competition Policy Enforcement in the EU and North America
Edited by Abel M. Mateus and Teresa Moreira
Chapter 16: The Legal Periphery of Dominant Firm Conduct
16. The legal periphery of dominant firm conduct Herbert Hovenkamp INTRODUCTION My interest is in two different but related problems and how U.S. antitrust law and EU competition law approach them. The first is the offense of ‘attempt’ to monopolize, which concerns anticompetitive acts of a firm that is not yet dominant but that threaten dominance. The second is the offense of monopoly or dominant firm ‘leveraging,’ which occurs when a firm uses its dominant position in one market to cause some kind of harm in a different market where it also does business. Historically the monopolization offense in the United States, or the parallel offense of Abuse of Dominant Position in Article 82,1 has been one of the most difficult for the law to define. Although our legal traditions have a wealth of law that deals with improper, unfair, or tortious practices by single firms, very little of it was concerned with competition as such, and nearly none of it was historically concerned with the structural manifestations of economic monopoly. In my own common law tradition there are plenty of good historical analogues for the restraints imposed by § 1 of the Sherman Act on collusion or other restraints of trade,2 but the only pre-Sherman Act precedents pertaining to single-firm monopoly really referred to monopolies created by the state and to the power that either 1 15 U.S.C. § 2; Treaty Establishing the European Community Art. 82, Nov. 10, 1997, 1997 O.J. C 340 3. See also Brian...
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