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

In this book we are focusing on the lenient intervention, where the
Commission by not being able to apply Article 82 to the anti-competitive
conduct of the non-dominant firm in the market, will not safeguard
consumer welfare, which is the objective of Article 82. Thus, the
Commission will not ensure that this firm bears its responsibility not to
interfere and distort the competitive process of entry into the market.
The Commission has stated that:
[A]n undertaking that is capable of substantially increasing prices above
the competitive level for a significant period of time holds substantial
market power and possesses the requisite ability to act to an appreciable
extent independently of competitors, customers and consumers. 56
It has further added that:
The Gap in the Application of Article 82 63
[T]he fact that an undertaking is compelled by the pressure of its
competitors’ price reductions to lower its own prices is in general incompatible
with the independent conduct which is the hallmark of a dominant
position. 57
In these passages the Commission uses the ‘substantial market power’
concept to indicate when an undertaking is dominant. As illustrated above,
in a differentiated products market more than one firm can have the ability
to increase prices above the competitive level for a significant period of
time. Thus, more than one firm can induce consumer harm, by adopting
anti-competitive conduct. Notwithstanding the use of the term substantial
market power in the Discussion Paper, and the fact that this term can
encompass more than one firm in differentiated product markets, the case
law has illustrated the apparent inability of the Commission to apply
Article 82 to the anti-competitive conduct of non-dominant firms in a
differentiated products market.
The gap in the application of Article 82 relates both to exploitative and
exclusionary abuses by non-dominant firms. Although the concept of abuse
of superior bargaining position/abuse of economic dependence addresses
anti-competitive conduct towards other firms, it does not seem to have
addressed to date anti-competitive conduct towards consumers. As the
above analysis illustrated, the wording of the concept of abuse of economic
dependence in some of the jurisdictions implies that in principle such
concepts can capture exploitative abuses, but the vast majority of the case
law in these countries relates to exclusionary conduct. In some other jurisdictions,
the scope of the concept of abuse of economic dependence is even
56 Discussion Paper Report, § 24.
57 Discussion Paper Report, § 27.