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

The Gap in the Application of Article 82 47
tive enumeration of the types of abuses of a dominant position prohibited
by the EC Treaty. 19
In a market with differentiated products each of the firms has a degree
of independence from its competitors. As we will analyse in this section, this
product differentiation allows the second biggest firm in the market to
adopt anti-competitive conduct harming consumer welfare. The structural
approach towards the definition of the concept of dominance, does not
allow the Commission to tackle such conduct.
As regards the assessment of dominance, for dominance to exist the
undertaking(s) concerned must not be subject to active competitive
constraints. In other words, it must have substantial market power. It is also
not required for a finding of dominance that the undertaking in question
has eliminated all opportunity for competition on the market. For Article
82 to apply it is not a condition that competition has been eliminated. In
conducting the analysis of whether the allegedly dominant undertaking ‘has
the power to behave to an appreciable extent independently of its competitors,
its customers and ultimately of the consumers’, it is relevant to
consider in particular the market position of the allegedly dominant undertaking,
the market position of competitors, barriers to expansion and entry,
and the market position of buyers. 20
The existence of a dominant position may derive from several factors
which, taken separately, are not necessarily determinative. According to the
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14 Case T-30/89, Hilti v Commission [1991] ECR II-1439, confirmed C-53/92P, [1994] ECR
I-666.
15 Case T-83/91, Tetra Pak Rausing SA v Commission (Tetra Pak II) [1994] ECR II-755.
16 Magill TV Guide [1989] OJ L78/43.
17 Case T-111/96, ITT Promedia NV v Commission (Promedia) [1998] ECR II-2937.
18 Case 72/71 Re Continental Can Co Inc [1972] OJ L7/25.
19 See further: Europemballage Corp and Continental Can Co Inc v Commission
(Continental Can) [1973] ECR I-215, §26.
20 Annex 2 presents a table (taken from the ICN Report) of the most important criteria that
countries use to assess single firm dominance/substantial market power.