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

CHAPTER 3
Abuse of Superior Bargaining Position/
Abuse of Economic Dependence
Röller 1 identifies some important ‘gaps’ in Article 82. Since Article 82 only
applies to firms that are already dominant, anti-competitive conduct that
leads to a dominant position cannot be caught in Europe under Article 82
as an exclusionary abuse. 2 This is according to Röller an enforcement ‘gap’.
Gap cases refer to cases where dominance is a result of exclusionary
conduct, and not the other way around. 3 He adds that there may be other
gaps under Article 82, such as anti-competitive conduct below the level of
dominance, or anti-competitive behaviour by an oligopoly as well as
achieving dominance through government action (eg natural monopolies).
This book will only address the gap that relates to anti-competitive conduct
of firms that are not dominant.
In the markets where both larger and smaller firms operate, the issue of
abuse of superior bargaining position/abuse of economic dependence 4
arises. In several jurisdictions this issue arises, inter alia, in the retail sector
after the emergence of large-scale retailers like hypermarkets. 5 In jurisdictions
that address the abuse of superior bargaining position, the concept
typically includes, but is not limited to, a firm with a stronger market position
entering into contractual relations with other firms under substantially
more favourable terms. A firm in the superior bargaining position does not
necessarily have to be a dominant firm or a firm with significant market
1 L Röller, ‘Exploitative Abuses’, in Ehlermann and Marquis (eds), European Competition
Law Annual 2007: A Reformed Approach to Article 82 EC (Hart Publishing, 2008).
2 Exclusionary abuses are practices aimed at foreclosing competitors from the market or
marginalizing them, ultimately causing harm to consumers. Exploitative abuses involve a
dominant firm which exploits the opportunities provided for by its significant market power
in order to harm consumers directly, for example by imposing excessive prices.
3 Röller would suggest that antitrust enforcement against exploitative abuses can be used
to close this important gap. ‘Exploitative abuse cases should be based on acquiring a dominant
position through anti-competitive exclusionary conduct. Overall, there appear to be three
main advantages in defining exploitative abuse as acquiring dominance as a result of an exclusionary
abuse. First, it is in line with sound economics. Second, it avoids the standard debate
on what is “excessive” (which I believe is impossible to define operationally). And third, it
closes the gap described above under Article 82.’
4 The two terms will be used interchangeably.
5 See further: Seventh Annual Conference of the International Competition Network,
Special Program on Abuse of Superior Bargaining Position.