POJAM ISKLJUČUJUĆE ZLOUPOTREBE DOMINANTNOG TRŽIŠNOG POLOŽAJA

Abstract

Neither Treaty on Functioning of the European Union nor 2009 Competition Act of the Republic of Serbia define concept of dominant market position abuse. That concept has been defined by ECJ in Hoffmann – La Roche judgment where the court declared that the “concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products and services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.” It is the definition of exclusionary abuse. The central issue of the concept is to determine analytical tools to identify which methods condition normal competition. The best tests are: equally efficient competitor, profit sacrifice, no economic sense, consumer welfare balancing and professor Elhauge efficiency test. Each of them has its own drawbacks and advantages and none of them is all-inclusive in the meaning that can be used for identification of all modes and acts of dominant market position abuse.