Emilia Dimitrova

One of the aims of competition law is to set out rules for ensuring that the undertakings holding a dominant position on the market would not take adverse advantage of such a position to the detriment of customers, suppliers or competitors. Therefore, the concept of dominance appears as one of the central concepts of competition law.

This paper discusses the definition of dominance and concludes that an undertaking should be found to be dominant only if it has market power which is considerably greater than that of other firms on the market and which can be used to harm competition. There are four concepts of market power which are canvassed.

The assessment of dominance is linked to the question of what the objectives of competition policy are. The objectives of competition policy are very heavily influenced by economic considerations. This requires the identification of corresponding legal and economic concepts. This article analyses how the concept of dominance in EU competition law has evolved in accordance with the changes of objectives of competition policy.

During the classical period in EU competition law development, which lasted from its inception in 1958 until 2004, the objective of competition policy was defined as the protection of competition and was understood as meaning economic freedom of other market players, inspired by the ordoliberal school of thought. Throughout this period dominance was equated with commercial power.

European competition policy was subsequently reformed and since 2004 has been based on what is called “a more economics-based approach” in the implementation of Article 102 TFEU. This approach, which draws on U. S. antitrust policy, puts greater emphasis on consumer welfare and efficient allocation of resources than on the competitive structure of the market and equates dominance with substantial market power. Substantial market power means that the undertaking faces no effective competitive constraint and is able to keep prices above the competitive level for a significant period of time or to exclude or deter competitors from the market.

It is submitted that the current approach in EU competition law is to define dominance as commercial power or substantial market power. The concept of dominance as substantial market power is adopted in the Commission Guidance Paper on enforcement priorities in respect of exclusionary abuses. The Commission’s treatment of Article 102 TFEU does not sit altogether comfortably with the case law of the EU Courts which see dominance as commercial power. The effect of this is that the application of Article 102 TFEU is suffered.

This paper compares the current concepts of dominance in the EU and Bulgarian competition law and practice. The aim is to clarify whether the concept of dominance in Bulgarian competition law and practice is consistent with the current EU interpretation of Article 102 TFEU. It is concluded that the Bulgarian competition practice is in line with the Commission Guidance Paper.

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Линк към статията на български език: ПОНЯТИЕТО ЗА ГОСПОДСТВАЩО ПОЛОЖЕНИЕ В СВЕТЛИНАТА НА КОНКУРЕНТНОТО ПРАВО НА ЕВРОПЕЙСКИЯ СЪЮЗ

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