Dominance—The Lost Child? How Effects-Based Rules Could and Should Change Dominance Analysis

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Series Details Volume 2, Number Sup 1, Pages 15-29
Publication Date July 2006
ISSN 1744-1056
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"This article considers the question whether the application of more effects-based rules under Article 82 warrants a new approach also to dominance analysis. I conclude that such a development should indeed lead to a more nuanced and differentiated approach to the definition and analysis of dominance, ie a dominance analysis that is more attuned to the abuse under review. However, I also argue that such a reorientation is, and has been, overdue and required even independently of such a policy change. Changes in dominance analysis necessarily affect the role and relevance of market shares. In some cases, market shares are irrelevant and relevant market analysis would appear to be entirely dispensable. In other cases, significantly higher market shares than the 50% deemed sufficient by the European Court of Justice (ECJ, the Court) are required to establish the kind of dominance which could conceivably produce the abuse under investigation."
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