The special responsibility of dominant undertakings

The notion of special responsibility does not create an additional requirement in the identification of an abuse for the purposes of Article 102 TFEU. However, it is not a meaningless phrase either. In this chapter, we show that the notion of special responsibility has evolved in the hands of the European Court of Justice and has been increasingly relied on in the past decade. By reference to what we show is a modified version of the notion of special responsibility the Court has achieved the following results. First, it has been able to refocus the case-law on exclusionary abuse to penalize conduct that has a qualified effect on the competitive process. Second, it sharpened the link between dominance and abuse. Third, it explained how the degree of dominance impacts the assessment of unilateral conduct for the finding of an abuse. Fourth, it explained why sometimes dominant firms have positive obligations. Fifth, it clarified the role of regulation in the identification of abuse.