ABSTRACT
These challenges to the law are significant, as reflected by policy shifts from an approach focusing on and demonizing size to one that now largely attempts to consider the effects of behaviour on competition and specifies that the primary goal of the law is not to protect competitors, but consumers. The protection of the consumer is, however, widely recognized as only possible where the platform for competition is free from artificial impediments that ensure the maintenance of higher prices or reduced output. The approach of the law within the Union is to outline a general list of conduct that would fall for consideration as market abuse, and to regard the notion of abuse as an objective concept underpinned by conduct contrary to ‘normal competition’, while case law in the US, on the other hand, specifies that monopolization is conduct that results from wilful acquisition or maintenance of market power, as distinguished from growth. As can be discerned, these specifications provide very little by way of analogy, let alone any kind of certainty that could guarantee that firms, in their decision-making process and subsequent conduct on the market, respond in a manner acceptable to the law.
