Abuse Without Dominance and Monopolisation Without Monopoly

Abstract

The EU and US antitrust law provisions on unilateral conduct are often understood as remedying the competitive harm resulting from the exercise of significant market power. They only apply when firms hold dominance or monopoly positions. Nonetheless, this chapter explores existing laws and planned legislative proposals diverging from this premise. It highlights the different degrees and types of economic power embedded in the EU and US rules that limit the conduct of firms holding lower thresholds of market power, relative power (e.g., economic dependence, and unfair practices), or gatekeeper powers. The chapter exposes a gap between the notions of power and the theory of harm, challenging the dividing line between protection against harm to effective competition and harm to competitors. Accordingly, the chapter calls upon legislators and enforcers to align the notions of power with the harm and interests covered by the laws.