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

Abuse of Superior Bargaining Position/Economic Dependence 23
The legislation and case law related to the abuse of superior bargaining
position/abuse of economic dependence will be analysed in this section. The
Member States which have clauses dealing with such abuse can enforce
their national legislation to prevent, inter alia, non-dominant firms from
adopting anti-competitive conduct. Thus, they can capture conduct that the
EC cannot under the current application of Article 82. Such infringements
will not require that an undertaking holds a dominant position in a given
market in order for it to be guilty of an abuse; it will suffice that there are
third parties in a situation of economic dependency, which do not have an
alternative. The exploitation of a situation of economic dependence may be
presumed, for example, whenever a supplier is compelled on a regular basis
to grant the purchaser not only ordinary discounts, but also other advantages
not available to other purchasers. Abuse of economic dependence
does not require that a dominant position in the national market or in a
substantial part of it exists, but only a situation of economic dependence or
relative dominance towards other commercial partners.
Under EC law, abuses of superior bargaining power are, in principle,
governed by Article 82. There are no separate laws that relate or refer to
the concept of ‘superior bargaining position’. It can therefore be presumed
that all anti-competitive conduct, whether or not in the context of businessto-business
bargaining, falls under Article 82. However, only abusive
behaviour performed by a dominant firm can constitute an infringement.
Dominance assessment thus serves as a filter when analysing unilateral
conduct cases. And this is where the gap in the application of Article 82 lies.
The Commission and the CFI/ECJ do not appear to have extensively
addressed the issue of the abuse of economic dependence in the case law.
The concept of economic dependence has been used in some cases in order
to indicate the dependence of customers on the firms under investigation. It
has been employed as a factor indicating dominance, 13 but has never, to this
author’s knowledge, been the basis for the sustainability of an allegation of
anti-competitive behaviour by non-dominant firms.
According to Schodermeier (1990), in the cases ABG 14 and Magill 15 the
Commission did not base its analysis on the fact alone that the oligopolists
had acted in a parallel manner. It also relied on the findings, inter alia, that
potential customers found themselves in a position of economic dependence
vis-à-vis the oligopolists. In Magill, the Commission looked at the economic
New French legislation on competition’ [1989] 10(2) ECLR 205–232. As mentioned above, if
the third biggest firm’s market share is similar to the top two, the same arguments as regards
the consumer harm induced by adopting possible anti-competitive conduct can be made.
13 See further: J Shaw, ‘Inter versus intra brand competition: dominant positions and ancillary
markets’ [1987] 12(3) E L Rev 12(3) 195–199.
14 (1977) OJ L 117/1.
15 (1989) OJ L 78/43. See § 22.