Mikroekonomiczne przesłanki reformy art. 82 TWE

Abstract

The article discusses selected economic issues in the context of the Article 82 review (prohibition of an abuse of dominant position in the EC Treaty). It is composed of two principal parts, the first one addressing the economic meaning of the legal term ‘dominant position’. In doing this, the author equates dominant position with significant market power and, basing upon such as assumption, argues that: (1) the existence of dominance is neither necessary nor sufficient for finding an abuse and (2) it is perfectly possible for more than one firm to be singly dominant in a given antitrust market. Finally, two fallacies related to market definition in Article 82 investigations are discussed (cellophane fallacy and product differentiation). In the second part of the article the author contrasts the current enforcement rules on predatory pricing with more economically sound policy. In particular, the current policy exhibits an excessive concern with costs and could lead to either under- or over-enforcement. It would be more reasonable for a policy to constitute of three evidentiary steps: of exclusion, recoupment and profit sacrifice.