Regulating dominance in the EU : when the law shapes markets

Abstract

Article 102 of the Treaty on the Functioning of the European Union (TFEU) is a controversial provision which has led to cases deemed over-reaching by many commentators. It has been argued that the law on abuse of dominance is used in an instrumental manner in order to pursue regulatory objectives. According to these critics, the scope of competition law would be extended beyond its legitimate boundaries. I argue that this argument relies on a narrow conception of competition law, which does not capture the actual scope of the EU law on abuse of dominant position. This thesis aims to assess the scope of the law by studying whether Article 102 can be used to create more competition in markets or whether it should be confined to the protection of competition. The EU law on abuse of dominant position is analysed by comparing its features to that of the theoretical conceptions of competition law and economic regulation respectively. The study of the Treaty, the case-law and the administrative practice of the Commission shows that the law on Article 102 is a hybrid between law and regulation. In contrast to the narrow orthodox conception of competition law, the scope of Article 102 always extended beyond the mere protection of competition. The law includes in its objectives the promotion of a specific competitive structure. A coherent set of rules and enforcement mechanisms has been designed to achieve this goal. The regulatory aspects of competition law, therefore, are not artificial by-products but part of EU law regulating dominance. The large scope of the law on abuse of dominant position indicates the EU choice to establish a rather interventionist legal regime in order to shape more competitive markets. The EU institutions have a functional approach to competition law and use the law to implement their idea of effective competition. Two case studies, in the energy sector and the digital markets, illustrate how the regulatory features of EU competition law are used to translate the EU policy objectives into enforcement practices. This thesis concludes that while the European conception of competition law is not objectionable as such, the Commission should better explain the circumstances under which the regulatory features of Article 102 apply.