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date: 10 July 2020

Abstract and Keywords

This chapter compares the concepts of monopolization and abuse of dominance as in Section 2 of the Sherman Act and Article 102 of the TFEU, respectively. After identifying a number of distinctive features in wording and interpretation—including the special responsibility of the dominant firm, competition of the merits, and protection of the competitive process—the chapter discusses three lines of argument to explain these differences. The first builds on ordoliberalism, with its concern for the absence of market power and for the resilience of competitive markets, which influenced EU competition law from the very beginning. The second line of argument derives from the observation that public competition law enforcement is fallible, which self-enforcement could remedy. The third argument explains some of these differences via innovation, whereby Article 102 would reflect a European perspective on innovation. We subsequently return to the underutilized EU category of exploitative abuses and argue that economic techniques developed in the context of damages litigation could open it up for future enforcement in a way that would be in line with ordoliberal principles, properly understood.

Keywords: monopolization, abuse of dominance, ordoliberalism, error-risk analysis, innovation, special responsibility, competition on the merits, exploitative abuse

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