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

42 A Gap in the Enforcement of Article 82
such conduct, an ability which some Member States possess and use in
order to prevent consumer harm from arising from such conduct. For
example, the Commission would not be able to deal with Rossignol’s anticompetitive
conduct in the light of Rossignol’s market share of about 8 per
cent. The Bundesgerichtshof upheld Rossignol’s obligation to supply the
sports shop under section 20, paragraph 2 GWB. The Commission would
not have been able to be so effective in addressing the consumer harm
induced by Rossignol, due to the gap in the application of Article 82.
The abuse of superior bargaining position/abuse of economic dependence
is not the only lacuna in the application of Article 82 to anti-competitive
unilateral conduct. There is a gap as regards the application of Article
82 to particular conduct of non-dominant firms in general. As was illustrated
above, non-dominant firms can have substantial market power due
to the differentiation of their products. Such market power can render their
conduct harmful to consumers. Capturing such conduct only if the firm is
considered to be dominant (giving undue and excessive weight to the
market share of the firm) will lead to increased occurrence of Type II
errors, 66 not capturing anti-competitive conduct of non-dominant firms. As
we will see in the next chapter the likely increased discretion of the
Commission to capture conduct of non-dominant firms, will not necessarily
lead to an increased number of Type I errors. 67 Rather it should lead to
a more effective and accurate application of Article 82 on harmful conduct
of firms having the economic strength … to prevent effective competition
being maintained on the relevant market by affording it the power to
behave to an appreciable extent independently of its competitors, customers
and ultimately of its consumers. 68
66 ‘Type II error’ occurs when a conduct which is anti-competitive is not prohibited. We can
have Type II errors, inter alia, when harmful conduct of non-dominant firms cannot be
captured by the competition legislation. The gap in the application of Article 82 will mainly
induce Type II errors but rectifying this gap (by making the definition of the term ‘dominant’
more dynamic and less dependent on the market share of the allegedly dominant firm) will not
only contribute to addressing Type II errors but also Type I errors by enhancin the correct and
accurate application of Article 82 on harmful conduct of firms.
67 ‘Type I error’ occurs when a conduct which is not anti-competitive is prohibited.
68 Case 27/76, United Brands Co. and United Brands Continental BV v Commisison
[1978] ECR I-207, § 65.