Modernizace práva proti zneužití dominantního postavení

Mgr. Lumír Swiech

Master's thesis

Modernization of Law against Abuse of Dominant Position

Abstract:

Předkládaná práce se zabývá posledním modernizačním vývojem v oblasti ochrany proti zneužití dominantního postavení na úrovni Evropské unie. Nejprve stanoví obecná východiska modernizace a následně analyzuje jednotlivé relevantní materiály Evropské komise. V závěru shrnuje a hodnotí naplnění původně deklarovaného modernizačního úsilí.

Abstract:

Presented paper deals with phenomenon of modernisation in specific branch of competition law of European Union. Despite several tangible efforts in other related competition areas abuse of dominant position hadn’t been affected till recent modernisation materials of European Commission. Paper firstly refers to previous approach of competition authority and Community courts and grounds of prevailing dissatisfaction with that approach. Then provides basic resources for new, so-called more economic approach which also comes from thesis that it is not useful to ban various practices which leads to abuse but the authorities should concentrate on effects of such a behaviour. Further in the text, there are three main materials described and partially, in the declared scope of paper, analysed (Report by EAGCP “An Economic Approach to Article 82”, DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses and Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings). There are several common provisions drafted by all these communications: In the first place, paper pays attention to the main object of competition regulation proposed by each material. In compliance with founding Treaty the protection against consumer harm should be in Commission’s opinion the ultimate result of market foreclosure caused due to abusive practise of dominant firm. It is argued that such a determination of competition law is welcomed especially in context of more economically based assessment of banned practices. On the other hand it is given notice to fact that such a normative assignment brings problems too, as practical as theoretical. Secondly, the paper reflects Commission’s approach to assessment of dominant position and presents finally ruling concept of significant market power. Thereafter points that by the Commission framework abuse of dominant position lies in market foreclosure. Presented paper focuses on defences provided to dominant firm by Commission’s communication. It is mentioned that justification of alleged abusive behaviour by objective circumstances was already recognized in settled case law as well as defence based on the legitimate execution of company’s right to pursue own economical interests. Beside that Commission drafted defence framework which lies in presumption that behaviour that brings more economic efficiency measured in consumer matter than at the same time reduces due to allegedly anticompetitive practice shouldn’t be considered as solely anticompetitive. In a similar way the so-called equally efficient competitor test is treated. At this point paper argues that such a concentration on only one kind of economic efficiency could lead to undesirable effects. Furthermore proposed scheme is often linked to Article 101(3) exemptions and in this sense paper urges that such a assimilation is not grounded on EU law. Finally, in the analytical part of paper there is considered several questions concerning the binding measure of produced Guidance. The partial conclusions are based on fact that Commission is obliged by the Treaties interpretatively provided by Courts in the end of the day. Paper concludes by asserting that analytical framework provided by Commission is in many cases nihil novum, rather provides closer economic look on several phenomenon previously presented either in case law or Commission own decisional practice. On the other hand it proposes few other measures which are extraneous to settled case law and arouses fears of consequences. However the paper admits the usefulness of the more economic approach, it points out the difficulties in finding specific economic implementation. In the end paper closes by question whether the modernisation isn’t change determined by specific economic theory which has origins in the United States, especially in view of the fact that tra

Abstract:

nsatlantic convergence is something desirable by competition authority.

Keywords

soutěžní právo, zneužití dominantního postavení, Evropská unie, modernizace, competition law, abuse of dominant position, European Union, modernisation

Language used: Czech

Date on which the thesis was submitted / produced: 31. 3. 2010

Thesis defence

• Date of defence: 20. 5. 2010
• Supervisor: doc. JUDr. Ing. Josef Šilhán, Ph.D.

Masaryk University

Faculty of Law

Master programme / field:
Law and Legal Science / Law