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

The Gap in the Application of Article 82 69
enjoy a dominant position on the market. As mentioned above, the CFI in
Bayer acknowledged that, in such situation, a manufacturer may adopt the
supply policy which he considers necessary, even if the implementation of
that policy may entail restrictions on competition.
Hinchliffe (2004) argued that the Commission can try to narrow the
definition of the relevant market to cover this kind of anti-competitive
restriction of parallel exports to include this unilateral conduct under
Article 82. 67 Clearly, such an approach can only lead to Type I errors and
legal uncertainty. Barry Hawk notes that ‘one of the greatest weaknesses of
Community Competition Law’ 68 is the treatment by the courts of the
boundaries between an agreement, which can be deemed anti-competitive
caught by Article 81, and unilateral practices, which can be caught under
Article 82, if the undertaking involved is dominant. Adalat 69 reduced the
possibility of unilaterally imposed policies within continuous business relations
coming within the scope of Article 81.
Sousa Ferro (2007) 70 argues that there is a clear trend in the CFI’s case
law to put an end to unreasonably wide interpretations of the concept of
agreement under Article 81, 71 whereas the ECJ has shown itself more reluctant
to take this step, the reason being that it is more mindful of the gap
which this reform will create in EC competition law. A finding of tacit
concurrence in the context of unilaterally imposed policies has been made
substantially harder by the Adalat case.
The gap that Sousa Ferro (2007) refers to is can be dealt in some jurisdictions
with the ‘abuse of economic dependency’ concept analysed above.
A much more effective way to combat such a lacuna in the application of
Article 82 in general to unilateral anti-competitive conduct of non-dominant
firms is to focus the definition and the application of the concept of
dominance on the ability of firms to act independently in their strategies
rather than mainly on the market share of the allegedly dominant firms.
We can think of the likelihood of many other similar cases existing where
the undertaking had substantial market power in the market and adopted
conduct which may have induced harm to consumers. Although following
67 Hinchliffe (2004) ‘When Is an Agreement Not an Agreement?’ [2004] 5/6 Business Law
Review 108, 110.
68 B Hawk, ‘The American (Anti-Trust) Revolution: Lessons for the EEC?’ [1988] ECLR
53, 77.
69 Commission Decision 96/478 Adalat [1996] OJ L201/1 (10 January 1996).
70 M Sousa Ferro, ‘Reassessing Borders between Agreements and Unilateral Practices after
Case C-74/04, Volkswagen II’ [2007] 28 (3) 205–209.
71 Sousa Ferro (2007) identified several Commission’s decisions which widened the concept
of an agreement: Wea-Filipacchi Music SA (72/480/CEE), [1972] OJ L303/52; Miller
International Schallplatten GmbH (76/915/CEE), [1976] OJ L357/40; The Distillers Company
Limited, Conditions of Sale and Price Terms (78/163/CEE), [1978] OJ L50/16; Johnson &
Johnson (80/1283/CEE), [1980] OJ L377/16; Fisher-Price/Quaker Oats Ltd—Toyco
(88/86/CEE), [1988] OJ L49/19; and Konica (88/172/CEE), [1988] OJ L78/34.