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

36 A Gap in the Enforcement of Article 82
trading terms, applying a discriminatory treatment, or suddenly and unjustifiably
terminating longtime commercial relations. 56
The following criteria are required in order to satisfy the test of sudden
and unjustified termination of long-term economic relations:
a) There must be a relation where an undertaking economically depends
on another or other undertakings which are its suppliers of certain
products or services.
b) This undertaking does not have an equivalent alternative in the sense
that there are no alternatives at all or the ones that are offered have
serious disadvantages. There is no other source to supply these products
or services, or if there is another source the supply is not made
under the same but under less favourable conditions, which place the
dependent undertaking in a position less favourable than that of its
competitors, since it diminishes considerably its ability to function in a
system of free competition, something which may cause the discontinuation
of operations even of the undertaking where the others depend
c) There must be an abuse of a relation of economic dependence, namely
the relatively dominant undertaking takes advantage of the power
given by the weakness of the dependent undertaking which has no
other alternative and as a result competitiveness of the latter is seriously
hurt.
In the ES against Karelia Tobacco Industry SA case, 57 a complaint was filed
by ES, a wholesale dealer of cigarettes against Karelia Tobacco Industry SA
for infringement of article 2a of L. 703/1977 on the grounds of unjustified
termination of their long-term commercial relationship. In the scope of a
commercial agency agreement, which was in force for decades, the
complainant was entitled to sell to retailer dealers in the agreed territory
cigarettes and other tobacco products, produced or distributed by Karelia
SA. The latter suddenly terminated the agreement with the complainant by
means of a letter, sent on 30 October 1997, where it was stated that termination
had effect as of 6 November 1997, due to the reconstruction of the
distribution system. It suspended sales of cigarettes and other tobacco products
to the agent.
The Competition Commission held that the object of the prohibition of
article 2a of L. 703/1977 is not to prolong contractual relations but to
provide a reasonable period, within which the depended undertaking will
56 For cases on abuse of economic dependence see: Decision 38/II/1999, 99/II/1999,
154/II/2000, 156/II/2000. www.epant.gr.
57 Hellenic Competition Commission No 145/11/2000, ES against Karelia Tobacco Industry
SA. The case is from the chapter on Greece authored by Professor Triantafillakis in Kokkoris
I (n 30).