EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

of the necessary research, at the end of which could be practical use of the product specific price elasticity of demand by competition authorities within the European Union in cases concerning possible abuse of a dominant position. The contribution first describes what position market power has in Article 102 TFEU. Second, it links market power to product specific price elasticity of demand. Third, digitalisation impact to a product specific price elasticity of demand applicability and usefulness is discussed. Fourth, brief pre-research regarding self-assessment of market position by start-up firms is presented. Final part identifies further required research and concludes. It builds on previous works of the author, exploring alternative measures of market power and a product specific price elasticity of demand in general (Kupčík, 2020; Kupčík, 2021). Unlike the previous papers, its aim is to specifically observe the impact of digitalisation and present results of pre-research. 2.1 Dominant position is a function of market power The existence or non-existence of a dominant position is a function of market power. This is de facto confirmed by the United Brands judgment from the point of view of European competition law ( United Brands , [1978]) and is also emphasized in the Guidance on the Commission’s enforcement priorities in applying Article 82 of the ECTreaty to abusive exclusionary conduct by dominant undertakings (European Commission, 2009, para. 9). For Czech national law, this is explicitly stipulated in Article 10(1) of the Czech Act on Protection of Competition. However, it is sometimes disputed that the market power notion in United Brands is meant to have its original economic sense. The argument about the difference between the legal concept of market power and its economic “twin” is unconvincing. If, in some cases, the decision-making practice of the competition authorities or the case law of the courts suggests otherwise, these are rather excesses in which, in any case, no connecting line can be traced, and rather evidence of special aspects of specific cases (Kupčík, 2020, p. 54). The unity of the legal and economic meaning of market power should also result from the so-called more economic approach promoted by the Commission in recent years and, somewhat later, by some indications adopted by the Court of Justice ( Post Danmark [2012]; Post Danmark II [2015]; Intel [2017]). 2.2 Lerner index The classical economic concept considers market power to be the ability to set a price above the level of marginal costs. Economic (and therefore legal) market 2. Market power in EU competition law and current approach to dominant position analysis

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