The paper focuses on the relationship between abuses of dominance and information sharing as it arises from the reading of EU, Italian and US case law. Firstly, it remarks how informational monopolists (or super-dominant firms) may infringe competition law in three different ways (they are the “informational abuses”): i) through actual or constructive refusals to exchange information; ii) through the misuse of information provided to public regulators performing some pro-competitive regulatory procedures; and iii) through collusion to provide misleading information (outside a regulatory procedure). Secondly, it points out that many Article 102 of the Tfeu (or homologous norms in other jurisdictions) cases are adjudicated via remedies imposing an exchange of information. Such behavioral remedies resemble much traditional regulation, as regards the rationale of intervention, the institutional resources employed and the powers exercised. As a consequence, we suggest to call them “para-regulatory” remedies, distinguishing them from pure, traditional regulatory interventions. In particular, these para-regulatory remedies can conflict not only with the already existing information based regulation, but also with the traditional suspicious approach that antitrust law takes when it comes to transparency and Article 101 of the Tfeu (or conspiracy rules).
Scambi di informazioni e abusi di posizione dominante: una rilettura degli “abusi informativi” e dei relativi rimedi
DI PORTO, Fabiana
2014-01-01
Abstract
The paper focuses on the relationship between abuses of dominance and information sharing as it arises from the reading of EU, Italian and US case law. Firstly, it remarks how informational monopolists (or super-dominant firms) may infringe competition law in three different ways (they are the “informational abuses”): i) through actual or constructive refusals to exchange information; ii) through the misuse of information provided to public regulators performing some pro-competitive regulatory procedures; and iii) through collusion to provide misleading information (outside a regulatory procedure). Secondly, it points out that many Article 102 of the Tfeu (or homologous norms in other jurisdictions) cases are adjudicated via remedies imposing an exchange of information. Such behavioral remedies resemble much traditional regulation, as regards the rationale of intervention, the institutional resources employed and the powers exercised. As a consequence, we suggest to call them “para-regulatory” remedies, distinguishing them from pure, traditional regulatory interventions. In particular, these para-regulatory remedies can conflict not only with the already existing information based regulation, but also with the traditional suspicious approach that antitrust law takes when it comes to transparency and Article 101 of the Tfeu (or conspiracy rules).I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
