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

Abuse of Superior Bargaining Position/Economic Dependence 25
The range of anti-competitive conduct that can constitute an abuse of
economic dependence is varied and includes non-cost justified rebates, entry
fees, listing fees, shelf rental payments and other charges, which are
enforced by the buyer after the original contract has been signed and agreed
(ie mainly forms of post-contractual opportunistic behaviour). The adoption
of restrictive practices or termination of established business relationships
without cause, taking into account the nature of such relationships
and the recognized business practices applicable to any such business, may
be considered as an abuse of economic dependence.
The Member States that apply such laws differ in market and economic
characteristics. Thus, the application of such legislation does not stem from
features particular to the country and/or economy but stem from the willingness
of these countries to be able to address anti-competitive conduct by
non-dominant firms. In what follows we will review some of these laws as
well as cases under these laws in order to clearly prove the gap in the application
of Article 82 due to its inapplicability to abuses of superior bargaining
position/abuse of economic dependence. 23
We will assess how the concept of abuse of superior bargaining position/abuse
of economic dependence is applied in several EU jurisdictions.
The sample includes large and smaller economies, as well as older and
newer Member States. 24
23 In Luxembourg, the 2004 Law does not provide for any rules applying to conduct of nondominant
firms. However, the Law of 30 July 2002, governing certain commercial practices
and prohibiting unfair competition, prohibits unfair practices, such as sale at loss, independently
of the fact that the relevant undertaking is in a dominant position or not. Law on
Competition of 17 May 2004 (the ‘2004 Law’). http://www.legilux.public.lu/leg/a/
archives/2004/0762605/0762605.pdf?SID=9c660fa1e8e5446d8be91743b21d36cb#page=2.
In Spain Article 6(1) of the Competition Act (Law 16/1989, of July 17) described the prohibition
of abusive behaviour in the market by dominant companies as ‘the abusive exploitation
by one or more companies of: (a) its/their dominant position in all or part of the national
market; (b) the situation of economic dependence in which its/their client or supplier undertakings
may be, in so far as they do not have an equivalent alternative to conduct their business.
This situation will be presumed when apart from regular discounts, a supplier has to
grant other additional advantages on a regular basis that are not granted to similar
purchasers’. E Navarro Varona (2000), ‘Amendments to the Spanish Law for the Defence of
Competition’ [2000] 21(4) ECLR 235–238. The main proposals put forward by the White
Paper were aimed at the harmonisation of Spanish legislation with EC competition rules. In
particular, the White Paper suggested: (i) the disappearance or clarification of two separate
anti-competitive conduct under Spanish law consisting of the abuse of a situation of economic
dependence and unfair conduct affecting competition. In the new Competition Act 15/2007,
of 3 July 2007 (http://www.cncompetencia.es/PDFs/doc/P_63.pdf), article 2 which relate to
abuse of dominant position does not refer to conduct of non-dominant firms. See further:
H Armengod, ‘A White Book for the Reform of the Spanish Competition Law System’ [2005]
ECLR, P Callol, P Pignatelli (2005), ‘Spain: General—Competition Enforcement’ [2005] 26(5)
ECLR N71–72.
24 In Italy abuse of superior bargaining position can be addressed through a private civil
action for injunctive relief and compensation for breach of section 9 of Law no 192 of 18 June
1998. This law which applies only to business-to-business relations prevents firms from