Treatment and assessment of dominance and monopoly in the EU and US: the application of 'size' and 'bigness'

K Law (General)

Nasibyan, Svetlana Sergeyevna ; Furse, Mark

University:University of Glasgow

Department:School of Law

关键词: Antitrust law, competition law, comparative law, size, bigness, monopoly, dominance.;   

Others  :  http://theses.gla.ac.uk/7953/1/2016NasibyanPhD.pdf

来源: University of Glasgow

【 摘 要 】

This thesis is an examination of the way dominance and monopoly are assessed in the EU and US antitrust law. In particular, it focuses on the two main factors which, in the view of this thesis, may play an important role in the application of antitrust rules. These factors are a firm’s size and bigness. With the main focus on these two factors, this thesis assesses whether the EU Commission holds an antagonistic approach to dominant firms as a way to promote consumer welfare and economic efficiency which are the main aims of antitrust law. As a matter of comparison, this thesis similarly considers the US approach to firms in a monopolistic position.This research is inclined to believe that ‘size’ and ‘bigness’ make a firm large in the context of antitrust law. Size is defined by the number of market shares a firm has in a relevant market. Bigness, on the other hand, is defined by a non-exhaustive list of all commercial and technological advantages a firm has over its rivals. Both elements, therefore, constitute dominance and monopoly, and place a firm into a privileged position over its competitors.The belief that dominant firms are inherently detrimental to the primary goals of antitrust may itself harm consumer welfare and economic efficiencies. This is explained by the fact that large firms have access to more resources which may be necessary for some industries. The obstacles for their growth may lead to the stagnation in the progression of markets which, in turn, will be reflected on the consumers and economy.Despite this being a common concern of various stakeholders, the Commission and the EU courts set low market share thresholds in order to measure a firm’s size and admit all firm’s privileges into the definition of a dominant position. It creates an impression that dominant firms are not welcomed in the EU internal market. US antitrust law, on the other hand, appears to have a less strict approach to firms in a monopolistic position by allowing firms to grow as long as there is no illegality behind it. The US market share threshold is much higher than in the EU and it has an almost complete disregard of a firm’s privileges and advantages. This thesis, therefore, came to the conclusion that EU competition law has a strong distrust toward dominant firms, whilst US antitrust law holds a neutral position. This research then proceeds to find an explanation of such a disparity between two leading antitrust regimes.