The Competition Law Observatory (CLO)

Fabiana Di Porto and Rupprecht Podszun (Eds.), Abusive Practices in Competition Law, Edward Elgar (2018), Hardback (ISBN: 978 1 78811 733 3), 512 pages, Hardback Price: £120.00 (Website: £108.00)

Recent antitrust investigations carried out in several countries around the world into allegedly abusive conduct of tech giants such as Google, Amazon and Facebook, show that abusive practices, in the form of abuse of dominance and of relative market power, are a hot topic for antitrust agencies, lawyers and academics. Furthermore, even legislators are considering making serious changes in their competition law systems with regard to abuse control; this is the case in Germany where the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB), will be amended regarding abuse control. In other words, the publication of the book under review could not be more timely and welcome.

Edited by Professors Fabiana Di Porto and Rupprecht Podszun, and published in the prestigious Academic Society for Competition Law (ASCOLA) series, the book under review arises from the contributions presented and topics addressed at the 10th Annual Conference of ASCOLA, which was held in May 2015 in Tokyo.

The book contains nineteen contributions, divided into three parts. It also includes a useful index. In a short review like this one, only the main aspects and some hints on some essays can be briefly presented.

The first part deals with the fundamentals on abuse of dominant position. Professor Behrens, for example, addresses the ordoliberal concept of “abuse”, providing an historical overview of theories and debates that have followed the interpretation and application of Article 102 TFEU. For example, very interesting and fascinating is the “dispute” between Renè Joliet, who later became judge at the CJEU, and Ernst-Joachim Mestmacker, the leading representative of the second generation of ordoliberals and a special counsel to the European Commission Competition Directorate. Other chapters of the first part address exploitative prices, and the financial and energy sectors.

The focus of the second part is about relative market power. The first chapter deals with abuse of economic dependence and its interface with abuse of dominance. Interestingly, as the author notes (page 159), “the concept of abuse of economic dependence is unknown to US and EU competition laws. However, EU member states such as Italy, Germany and France have in their competition laws provisions dealing with uneven bargaining power, termed, also, as abuse of economic dependence”.

The third part of the book contains contributions on specific experiences in some jurisdictions (including China and Japan). Worth mentioning also is the final contribution, written by Professor Di Porto, which draws some interesting conclusions (especially on market definition) on the basis of the contributions collected.

In conclusion, the book is a goldmine of analysis and references to case law. As such, it is of interest not only to academics, but also to practitioners.

Reviewed in May 2019
Riccardo Sciaudone
Head of the Competition Law Observatory

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