Monopolization in Europe: Understanding Dominance as an Ability

ABSTRACT Over the past two decades, the European Commission’s enforcement activities against abusive practices often came too late. Investigations only started when companies had already acquired a strong dominant position. It proved difficult to restore competition. In this paper, we advocate an earlier intervention, namely when undertakings start to monopolize markets. This is possible under Article 102 of the Treaty on the Functioning of the European Union without legislative amendment by returning to the original definition of dominance and placing less emphasis on market shares. In line with cases like Hoffmann-LaRoche, dominance must be defined as the ability to steer the market into a direction that is detrimental to competition and trading partners. This will allow authorities to investigate the behaviour of firms at an earlier point of time, which is particularly valuable in markets prone to tipping.