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

Abuse of Superior Bargaining Position/Economic Dependence 41
As the above analysis illustrates, several EU Member States have clauses
in their competition legislation that can address anti-competitive conduct of
non-dominant firms. 64 In the jurisdictions analysed above, the concept of
abuse of superior bargaining position/abuse of economic dependence
applies generally to the whole economy and captures any conduct which
may be abusing a superior bargaining position or abusing the economic
dependence of an undertaking and causing harm to this undertaking. In
some jurisdictions the concept of abuse of economic dependence has a
narrow scope of application. Some of these jurisdictions apply the concept
only to the buyer side of the market in an attempt to address conduct of
large retailers against less powerful suppliers in the conclusion of contracts
and other commercial agreements. In some others (eg Ireland) the concept
applies only in the grocery sector.
The application of the concept does not vary depending on the size of the
economy or for how long a particular jurisdiction has been enforcing
competition law. Most of the jurisdictions analysed above use similar criteria
to assess abuse of economic dependence and the main point of variation
is whether the concept is applied to the buyer side (eg Slovak Republic) or
to both the supplier and buyer sides of the market, or whether it applies to
particular industries (eg the grocery sector). In most jurisdictions conduct
that falls under the concept of abuse of economic dependence relates to
exclusionary abuses. 65 The concept of abuse of economic dependence has
been applied mainly in relation to anti-competitive conduct towards other
firms. The extent to which this concept would capture an exploitative abuse
by a non-dominant firm is doubtful. It remains to be seen whether there will
be cases that will clarify this grey area of the application of the concept of
economic dependence.
I. Concluding Remarks on the Approach of Member States
Article 82 does not address anti-competitive conduct of non-dominant
firms and thus leaves a gap in the ability of the Commission to deal with
64 In addition to the EU Member States, it is worthwhile mentioning Japan. The general
competition law in Japan includes a prohibition against unfair trade practices. This prohibition
potentially applies to conduct such as unjust refusals to deal, exclusive dealing, restrictive
dealing, tie-ins, or charging unjustly low or discriminatory prices. A finding of dominance is
not required. The test is whether an undertaking is ‘influential in the market’. This is based on
factors such as market share (10 per cent or more) and market position (among the top three
competitors). Thus, any of the three biggest firms in the market may be considered to be influential
in the market and thus may be subject to the law, irrespective of whether it is the biggest
firm or not. In order for a conduct by an influential firm to be considered illegal, it must lead
to a reduction of the competitors’ business opportunities and to making it difficult for them to
find alternative trading partners. See further: ICN Kyoto-ASBP, 61.
65 As noted above, some jurisdictions do not consider the abuse of economic dependence as
a competition issue. It is considered a contractual issue.