"Introduction" [2018] ELECD 1503; in Di Porto, Fabiana; Podszun, Rupprecht (eds), "Abusive Practices in Competition Law" (Edward Elgar Publishing, 2018) 1

Book Title: Abusive Practices in Competition Law

Editor(s): Di Porto, Fabiana; Podszun, Rupprecht

Publisher: Edward Elgar Publishing

ISBN: 9781788117333

Section Title: Introduction

Number of pages: 3

Extract:

Introduction Abuse of dominance is back on the agenda in antitrust: the growing discontent with digital gatekeepers such as Google, Facebook or Amazon led to fresh abuse cases all over the world. The record fine handed out by the European Commission in the case Google Shopping is just the tip of the iceberg. Abuse of dominance requires proof that the undertaking in question can act independently of the reactions of customers or competitors. That is a tough threshold. Some jurisdictions try to regulate behaviour that is considered abusive even if dominance could not be established. They use different thresholds such as relative market power or superior bargaining power. The doctrine of unconscionability, as established in some jurisdictions, also serves as a tool to make intervention into business relationships possible for courts and competition agencies. As this collection shows, turning to constellations of superior bargaining power is another global trend in competition law practice. Behind this is the idea that working markets need `fairness' in the dealings of undertakings. This trend may also reflect a certain discontent with a complex, model-based economic approach. Be it the abuse of dominance or of relative market power ­ both instruments require proof of `abuse', a term that arguably is harder to define than any other term in competition law. Abuse requires an understanding of the `right' use of market power, yet free-spirited competition lawyers who cherish Friedrich von Hayek's `discovery procedure' struggle with the definition of what is right and what is ...