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

34 A Gap in the Enforcement of Article 82
The French authorities will apply the four abovementioned criteria in
judging whether a particular conduct constitutes an abuse of economic
dependence. Each complaint received which meets these four criteria will
be assumed that it entails economic dependence. After substantiating the
existence of economic dependence the authorities will examine whether
there is an abuse and whether the abuse affects competition. Complaints
which meet the ‘economic dependence’ and the ‘abuse’ criteria are likely
to also have an adverse impact on competition and thus will be investigated
further by the authorities. Since 1986, there have been between 40
and 50 complaints investigated which led to seven condemnation decisions.
C. Portugal
The Portuguese legislation prohibits the abuse of economic dependence.
According to Article 7:
Abuse of economic dependence
1—Insofar as it may affect the functioning of the market or the structure
of the competition, one or more undertakings shall not engage in the
abusive exploitation of the economic dependence on it or them of any
supplier or client on account of the absence of an equivalent alternative.
2—The following in particular may be considered abusive:
a) Any of the forms of behaviour laid out in Article 4 (1)
b) The unjustified cessation, total or partial, of an established
commercial relationship, with due consideration being given to
prior commercial relations, the recognised usage in that area of
economic activity and the contractual conditions established.
3—For the purposes of paragraph 1, an undertaking is understood as
having no equivalent alternative when:
a) The supply of the good or service in question, in particular that of
distribution, is provided by a restricted number of undertakings;
and
b) The undertaking cannot obtain identical conditions from other
commercial partners in a reasonable space of time.
The Portuguese authority considers that a company is in a situation of
economic dependence as regards the supplier or client with whom it
contracts an important part of its sales or purchases, when, if the latter
wanted to terminate those sales or purchases, it would not be able to find
in the market any equivalent product or service. The following criteria
support a finding of economic dependence of distributors vis-à-vis their
suppliers: (i) the notoriety of the trade mark; (ii) the supplier’s market share;