Abuse of Dominant Position or the anomaly of the dominant Position : The same thing

Concept and Definition of the anomaly

According to the Larousse dictionary, to dominate is to be the master of a territory, to exercise full and complete sovereignty over it; synonyms: to govern - to rule - to enslave - to command - to enslave or even to subdue.

Also according to the Larousse dictionary, the dominant is the one who plays the main role, who dominates among others: The dominant traits of his character; synonyms: capital - characteristics - fundamental - primordial

Well, now that the qualifications have been established, let's examine the dominant position according to competition law: Competition law states that it is not the dominant position that is illegal, but the act of abusing it; In short, abusus du jus, but for me, the normal behavior of a dominant position would be usus and not abusus. I believe the qualifications are clear: abusus (according to DicoLatin: to use something completely, to make use of, or to employ; to use something in a roundabout way) which gives abuse and usus (still according to DicoLatin: to serve something / to be useful to someone) to use or to use.

But the best is mathematics and commutativity, which demonstrate the direct or indirect correlation between the dominant and the dominated. Thus, if we believe case law and doctrine, we take A for the dominant and B for the dominated. According to the latter, the formulation is as follows:

A = B, it is only if A abuses that A ≠ B, or A > B.

Whereas for me, and I imagine for you, it would only be, according to the definitions from the outset, A > B simply because of the dominant position, or even A ≠ B.

Why? As indicated by the dominant position, and beyond, human nature tends to abuse what it alone possesses and what is neither shared nor controlled (even if the judge controls, it's true, but it's only after the fact, and often too late).

I. Anomaly in Politics regulatories:

As I explained, legal systems favor the emergence of monopolies, because they themselves are in a state of monopoly. Definition of a legal system: one that has a monopoly on force (Manu militari) and the enactment of the rule of law. It is inherent to meet one's counterpart, to favor it, even if only to discuss on equal terms with large commercial groups.

What is a monopoly? This must be sought again in the law and in definitions: But then we could say what is a dictator: someone who gathers all the powers in their hands. He differs from the despot in that the despot does what is not good (at least not in the common interest), while the benefactor does what is good (and therefore in the common interest). Human history shows that dictatorships turn to despotism and not to what is good. There have been few, if any, benefactor dictators. Why compare to monopoly? This is interesting because a monopoly gathers all power in its hands, like a dictator. It can only abuse it; it is the very unstable nature of its dominant position that dictates this (in France, we speak of the "fait du prince"). II In economics:

As I demonstrated above, if A = B in theory, then A would be in a dominant position, although it is clear that this cannot be written this way simply because of the difference, but rather A ≠ B.

This better reflects reality, but why do case law and doctrine refuse to accept that A > B from the outset, when economically and socially everything demonstrates it:

Turnover, number of employees, number and quality of customers, number and quality of suppliers and/or business partners, financial reach, bargaining power, which does not necessarily stem from these areas but can be a separate and complete element, etc.

All these phenomena combine to demonstrate a dominant position from the outset. Therefore, the formula is correctly written and should be written A > B, not because I want it to be, but because the facts demonstrate it.

II Anomaly in economy:

As I demonstrated above, if A = B in theory, then A would be in a dominant position, although it is clear that this cannot be written this way simply because of the difference, but rather A ≠ B. This better reflects reality, but why do case law and doctrine refuse to admit that A > B from the outset, when economically and socially everything demonstrates it: turnover, number of employees, number and quality of customers, number and quality of suppliers and/or business partners, financial reach, bargaining power, which does not necessarily stem from these areas but can be a separate and complete element, etc. All these phenomena contribute to demonstrating a dominant position from the outset. Therefore, the formula is correctly written and should be written A > B, not because I want it to be, but because the facts demonstrate it. III Usus or Abusus ≠

But why does the monopoly abuse its dominant position when it knows it risks the wrath of antitrust authorities? The reality lies elsewhere. Not in the desire to do little in the common interest, but rather in the inherent fact of the dominant position, which is an abusus in itself. And not a usus.

The commutativity between the two terms would be valid, but that doesn't hold water either: Usus = Abusus, not according to the definitions seen above, and practice shows that I am right.

III Usus ≠ Abusus but Abusus is equal to dominant position

So if A > B, then it is not peacefully using its position, even if the legislature applies its leniency to it in criminal law: the presumption of innocence. But if B, in a dominated position, uses usus, then A necessarily uses abusus, even if B could behave in the same way toward C, i.e., A > B > C, unless A > B and C combined, then the proposition would be A > (B = C), etc.

But what is the causal link between a dominant position and abuse? I wrote in my Master's thesis at Montpellier I University - Consumer Law Center that the unilateral determination of things, such as price or general terms and conditions, is an abuse in itself. That one decides for oneself, it passes if one does it alone without consultation, if it goes badly, then one only has to blame oneself but when one decides for oneself and for others it requires consultation, negotiation hence the enactment of the civil code, moreover which intervened, in a context where the lords had all power in France, of life or death, economic power, social etc… So, once again, we have just demonstrated the link between dominant position and abusus, or the determination of the price or conditions is unilateral. There is a rupture of the economic balance simply because of the dominant position and therefore there is necessarily abusus, moreover in the etymology, domination is found in the art of war but abusus in the law but these are two equivalent words which have the same meaning. So the jurisprudence and the doctrine makes a pleonasm when it speaks of abuse of dominant position. They like to do this so that we don't see anything wrong and favor large groups.

IV. Solutions

Apart from establishing certain mechanisms like mandatory negotiation, why not? In real time (see my free real-time negotiation API for access), but also other regulations, or rather new and different regulations based on real observations. It is because the legal classification is false or biased that antitrust regulations fail, and we see everywhere on the planet a link or a common point in all global commercial markets: recommended retail prices (RRPs) that align the entire planet with the same pricing policy: that of the monopoly or monopolies. But other solutions exist. But this is neither the place nor the time to talk about them or even discuss them.

To conclude : I've tried to mean that Abuse and position dominant are synonym rather than antonym or the opposite. People can say, of course it's not the opposite, beacause the two are complementary. But it's misqualify the situation in my opinion.

Author

Vidal Bravo - Jandia Miguel

Engineer - Master II in Law

Montpellier I University Training and research unit - Consumer Law Center

Paris II / Panthéon - Assas