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

22 A Gap in the Enforcement of Article 82
power. Article 82 does not apply to such conduct unless the undertaking
concerned is considered to be dominant. 6 Thus, there is a gap in the application
of Article 82 to these kinds of conduct, which can induce consumer
harm.
Such practices are in some jurisdictions handled by competition authorities,
or by other government agencies under non-competition perspectives. 7
In some jurisdictions, such practices are not regulated, and are addressed
through private litigation. 8
An ICN Report on the abuse of superior bargaining position/abuse of
economic dependence identified some jurisdictions (and in particular
several larger jurisdictions) where intervention is also possible against an
undertaking’s allegedly anti-competitive unilateral conduct taken in a
market in which it does not hold a pre-existing dominant position. 9 Fifteen
of the 35 jurisdictions covered by the ICN questionnaire responses allow
for potential enforcement action without the need to find a pre-existing
dominant position. Eleven of 35 jurisdictions allow for enforcement based
on the allegedly anti-competitive conduct of a non-dominant undertaking.
10
Some of these jurisdictions aim at creating a ‘level playing field’ for
smaller undertakings and thus prohibit stronger undertakings from exploiting
positions of economic dependency or economic disparity. Quite a few
EU Member States have clauses in their competition legislation that aim to
create such level playing field. Such clauses would make it possible to
control, inter alia, discriminatory offers or demands by companies or
groups of companies which, without having a dominant position, are obligatory
partners either for their suppliers or their customers because of their
influence in the market. 11 The notion of abuse of economic dependence
applies to situations where after defining the market no incumbent can be
characterized as being in a dominant position. 12
6 And even if the undertaking concerned is dominant, Article 82 may not apply to all its
conduct.
7 US and UK consider this conduct as contractual disputes and not competition-related.
8 The extent of private litigation depends inter alia on the resources of the involved parties.
Private litigations cannot substitute for competition enforcement conducted by the relevant
authorities and courts.
9 Seventh Annual Conference of the International Competition Network, Special Program
on Abuse of Superior Bargaining Position.
10 ICN Kyoto-ASBP, page 61. Annex 3 presents a table of the stages at which competition
authorities can intervene in the jurisdictions that responded to the ICN survey. It is interesting
to note the number of jurisdictions where competition law enables the competition agency to
intervene against unilateral conduct at a level below dominance threshold.
11 The extent of the possible gap is indicated by the fact that in five years, under the legislation
on abuse of economic dependence, the Bundeskartellamt initiated more than one
hundred proceedings, for abuse of purchasing power by major distributors. See further:
I Roudard, ‘The New French legislation on Competition’ [1989] 10(2) ECLR 205–232.
12 Particularly in cases of abuse arising from mass marketing. See further: I Roudard, ‘The