Hovenkamp, Herbert --- "The Legal Periphery of Dominant Firm Conduct" [2010] ELECD 364; in Mateus, M. Abel; Moreira, Teresa (eds), "Competition Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Competition Law and Economics

Editor(s): Mateus, M. Abel; Moreira, Teresa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449992

Section: Chapter 16

Section Title: The Legal Periphery of Dominant Firm Conduct

Author(s): Hovenkamp, Herbert

Number of pages: 26

Extract:

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 par-
allel 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 manifesta-
tions 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. ...