The Competition Law Observatory (CLO)

Francisco Enrique Gonzalez-Diaz, Robbert Snelders (editors), Abuse of Dominance Under Article 102 TFEU, (Claeys & Casteels, Deventer, 2013), hardback, xcviii + 848 pp., ISBN: 9789077644133.

Edited by Francisco Enrique Gonzalez-Diaz and Robbert Snelders, the book under review is a very welcome novelty in the excellent EU Competition Law series published by Claeys & Casteels Law Publishers, as it covers the abuse of a dominant position as set out in Article 102 TFEU. The publishing of a book on Article 102 TFEU was inevitable after the Commission’s adoption of the “Guidance on the Commission’s Enforcement Policies in Applying Article 82 EC Treaty to Exclusionary Conduct by Dominant Undertakings”.

As explained by the editors in a very interesting foreword, the purpose of the book, which combines both legal and economic analysis, is to offer a comprehensive review of the principles that underpin the application of Article 102 TFEU. It is worth noting that the economic analysis is targeted with lawyers in mind.

The book is divided into 12 well-structured chapters. After the foreword, the first three chapters (on market definition, dominance and the concept of abuse, respectively) set the stage for the core discussion of the different types of abuse. Worth mentioning here is Chapter 3, written by Francisco Enrique Gonzalez-Diaz and John Temple Lang, on the concept of abuse. They first summarise the different approaches to the definition of abuse, with a particular focus on “exclusionary abuse”, and then propose a legally and economically sound test to identify abusive conduct that could be used in future cases by the Commission as well as by the EU Courts.

In the following 8 chapters, different types of abuse are analysed (from margin squeeze to exclusive dealing, from refusal to deal to tying and bundling). In each chapter the authors offer a full overview of the issues and the developments of the relevant practice of the Commission and the EU Courts. For example, Chapter 5, on margin squeeze, fully covers in depth the relevant case law, from Deutsche Telecom to Telia Sonera. Cases are thoroughly scrutinised and the reasoning behind them is compared and eventually criticism is raised in the case of inconsistency of approach or insufficient evidence to prove the abuse. In the long and extremely detailed Chapter 7 on refusal to deal, the authors (Maurits Dolmans and Matthew Bennett) also discuss this particular conduct in the context of the protection of property rights and review how the EU Courts and the Commission have so far balanced the ban of abuse of dominance against the fundamental rights to property and freedom of contract.

The final Chapter 12, written by Thomas Graf and Davis R. Little, discusses the remedies and penalties that may be applied in case of infringements of Article 102 TFEU, with a focus on public enforcement by the Commission and the EU Courts. The authors analyse the case law in a very critical way. For example, in reviewing the Alrosa case, in which the Court of Justice placed some important limits on the extent to which the principle of proportionality can be invoked to challenge a commitment decision under Article 9 of Regulation 1/2003, the authors criticise the Court’s findings “particularly in circumstances where the Commission uses the threat of Article 7 proceedings in order to encourage a company to agree to Article 9 commitments” (p. 729).

Authored by leading experts in the field, the book fully accomplishes the objectives pursued. Although practitioners and antitrust enforcers are the elected audience, academics will find the book of extreme interest for the thorough and comprehensive analysis of relevant literature and case law. The book is definitely going to become the reference textbook on Article 102 TFEU.

Reviewed September 2015
By Riccardo Sciaudone
Head of the Competition Law Observatory

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