European and American Antitrust Regulation of Pricing by Monopolists

Article 86 of the Treaty of Rome outlaws any "abuse ... of a dominant position within the common market or a substantial part of it." The EEC prohibition is similar to the developed meaning of "monopolization" in section 2 of the Sherman Act, requiring both market power and improper conduct. This Article analyzes the type of conduct that is considered improper: specifically, the pricing practices that constitute abuse under article 86, or monopolization under section 2. Article 86 provides examples that help determine what abuse is: Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.