Abuse of Economic Dependence - The Centre for European Policy ...

Concept of Dominance 19
criticisms mentioned above, for the purposes of this book dominance is
defined according to ECJ’s definition in United Brands. In the context of
Article 82, 20 as the ECJ in Continental Can argued, ‘there is no need for a
causal link to be established between the dominant position and the abuse.
It is necessary only that the conduct strengthens the undertaking’s dominant
position and fetters competition on the market’. 21
The respondents to the ICN Report cited two basic legal definitions of
single-firm dominance/substantial market power—structural and behavioral.
Behavioural definitions share a focus on a firm’s appreciable freedom
from competitive constraints or the ability to act in ways that a competitively
constrained firm could not. The structural definition identifies
substantial market power by an established market share threshold that
may allow for possible situation specific deviations.
Thus, the structural definition identifies dominance by an established
market share threshold that may allow for possible situation-specific deviations.
Behavioural definitions broadly focus on a firm’s appreciable freedom
from competitive constraints or ability to act in ways that a
competitively-constrained firm could not.
As regards the definition of ‘abuse’, although there is no definition of the
concept in legislation the ECJ has on numerous occasions dealt with this
concept; for instance, in Continental Can, 22 it stated that ‘abuse may occur
if an undertaking in a dominant position strengths such position in such a
way that the degree of dominance reached substantially fetters competition
[that] only undertakings remain in the market whose behaviour depends on
the dominant one’.
In Hoffmann-La Roche 23 the ECJ widened the concept by holding it to
be an ‘objective concept’ relating to the behaviour of a dominant undertaking
which influences the structure of the market thereby weakening competition
through methods different from those of normal practice and having
an effect of hindering the maintenance and the growth of competition. A
dominant undertaking can, however, protect its commercial interests, but,
20 On the contrary as the ECJ confirmed in Kali und Salz, there must be a causal link
between the creation or the strengthening of dominance under the original ECMR and the
adverse impact on effective competition. This distinction on the necessity of the ‘causal link’
illustrates the different application of the dominance test under Article 82 and ECMR. Case
M308 Kali und Salz/MdK/Treuhand [1998] OJ C275/3; on appeal Cases 68/94 and C-30/95
France v Commission, Societe Commerciale es Potasses et de l’Azore (SCPA) v Commission
[1998] ECR I-1375.
21 Case 6/72 Europemballage Corp and Continental Can Co Inc v Commission
(Continental Can) [1973] ECR I-215, § 26–§27.
22 Europemballage Corp and Continental Can Co Inc v Commission (Continental Can) §
26.
23 Case 85/76, Hoffmann-La Roche & Co AG v Commission [1979] ECR I-461, § 91,
repeated in eg Case 322/81, Michelin v Commission [1983] ECR 3461, § 70.