What is an Abuse of a Dominant Position? Deconstructing the Prohibition and Categorizing Practices

This chapter considers the boundaries of the notion of abuse of dominance (broadly conceived) from a comparative standpoint (in particular, by reference to the EU and US systems). It shows, first, that it is not possible to meaningfully distinguish between inherently ‘improper’ and valid expressions of competition on the merits. Most practices can be plausibly explained on pro-competitive grounds and do not necessarily or invariably lead to anticompetitive effects. It explains, second, that the quest for an all-encompassing legal test has proved futile. Third, the chapter teases out the constituent elements of the notion of abuse and defines the fundamental criteria on the basis of which the main categories of potentially abusive conduct can be distinguished. This exercise is useful to identify the tensions that arise in the case law and to make sense of some of the ongoing controversies surrounding the appropriate categorization of practices (concerning, in particular, the appropriate treatment of product design and business models)