ABUSE OF A DOMINANT POSITION - Advocatennet
ABUSE OF A DOMINANT POSITION - Advocatennet ABUSE OF A DOMINANT POSITION - Advocatennet
I. Art. 82 EC: general issues (2) - Causality between abuse and dominance - • Continental Can – 27. “The question of the link of causality raised by the applicants which in their opinion has to question exist between the dominant position and its abuse, is of no consequence, for the strengthening of the position of an undertaking may be an abuse and prohibited under article 86 of the treaty, regardless of the means and procedure by which it is achieved, if it has the effects mentioned above.” – Causality • In most cases, the abuse implies the anti-competitive use of substantial market power • Other cases – Structural: e.g. Continental Can – Behavioral: e.g. AstraZeneca 4
I. Art. 82 EC: general issues (3) - interaction with Art. 81 EC - • If exemption Art. 81-3 EC, no abuse under Art. 82 EC – Atlantic Container 1456. “Where the Commission grants an individual exemption pursuant to Article 81(3) of the Treaty in respect of agreements notified by undertakings holding a dominant position, it indirectly bars itself, in the absence of a change in the facts or the law, from considering that the same agreements I constitute t abuses contrary to Article 82 of the Treaty”. • Simultaneous application of Art. 81 EC and Art 82 EC prohibitions - CMB 33. “It is clear from the very wording of Articles 81 (a), (b), (d) and (e) and 82 (a) to (d) of the Treaty that the same practice may give rise to an infringement of both provisions. Simultaneous application of Articles 81 and 82 of the Treaty cannot therefore be ruled out a priori.” i 5
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I. Art. 82 EC: general issues (2)<br />
- Causality between abuse and dominance -<br />
• Continental Can<br />
– 27. “The question of the link of causality raised by the applicants which in their<br />
opinion has to question exist between the dominant position and its abuse, is of<br />
no consequence, for the strengthening of the position of an undertaking may be<br />
an abuse and prohibited under article 86 of the treaty, regardless of the means<br />
and procedure by which it is achieved, if it has the effects mentioned above.”<br />
– Causality<br />
• In most cases, the abuse implies the anti-competitive use of substantial market power<br />
• Other cases<br />
– Structural: e.g. Continental Can<br />
– Behavioral: e.g. AstraZeneca<br />
4
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