EU Competition Law and Policy - compal

Article 102 TFEU
Article 102 TFEU:
©Ariel Ezrachi, December 2012
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Any abuse by one or more undertakings of a dominant position within the internal market
or in a substantial part of it shall be prohibited as incompatible with the internal market
insofar as it may affect trade between Member States. 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.
For ease of analysis Article 102 TFEU may be divided into four main questions:
1. Is there a dominant undertaking or a group of undertakings?
2. Is this dominant position within the Internal Market or in a substantial part of it?
3. Is this dominant position being abused?
4. Could this abuse of a dominant position affect trade between Member States?
Although Article 102 TFEU does not include an exempting provision similar to Article 101(3)
TFEU, conduct which is regarded as abusive may escape the prohibition in Article 102 TFEU if
the dominant undertaking can objectively justify it or show that the actions generate efficiencies
which outweigh the anticompetitive effects. One can therefore qualify the third question by
asking whether the undertaking’s conduct can be objectively justified.
The analysis of Article 102 TFEU through these questions is illustrated below.
Dominant Position
Dominance is a position of economic strength enjoyed by an undertaking which enables it to
prevent effective competition being maintained in the relevant market, by affording it the power
to behave to an appreciable extent independently of its competitors, customers and its
consumers. The concept of dominance reflects the notion of market power and requires a
preliminary consideration of the relevant market and its characteristics.
The process involves two distinct steps. First the boundaries of competition need be identified
by defining the relevant product and geographic markets (see discussion in Chapter 2 above).
Once the market has been defined, it is possible to proceed to the next step and assess whether
the undertaking enjoys a position of dominance in that market. The analysis is based on, among