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

Objectives of Article 82 7
economic freedom of the market players as well as on preventing firms from
using their economic power to undermine competitive structures. 7
In Continental Can, the Court ruled:
‘… abuse may therefore occur if an undertaking in a dominant position
strengthens such position in such a way that the degree of dominance
reached substantially fetters competition, i.e. that only undertakings
remain in the market whose behaviour depends on the dominant one …
it can … be regarded as an abuse if an undertaking holds a position so
dominant that the objectives of the Treaty are circumvented by an alteration
to the supply structure which seriously endangers the consumer’s
freedom of action in the market such a case necessarily exists if practically
all competition is eliminated.’ 8
The ECJ in that case concluded that Article 82 is aimed at practices which
may cause damage to consumers directly, as well as at practices that are
detrimental to consumers through their impact on an effective competitive
structure. 9
Advocate General Jacobs has stated that: 10
‘[I]t is important not to lose sight of the fact that the primary purpose of
article 82 is to prevent distortion of competition—and in particular to
safeguard the interest of consumers—rather than to protect the position
of particular competitors.’
The Court of First Instance (‘CFI’) in the British Airways case explained:
‘Article 82 EC does not require it to be demonstrated that the conduct in
question had any actual or direct effect on consumers. Competition law
concentrates upon protecting the market structure from artificial distortions
because by doing so the interests of the consumer in the medium to
long term are best protected.’ 11
7 L Gormsen, ‘Article 82 EC: Where are we coming from and where are we going to?’, The
Competition Law Review, vol 2, issue 2, March 2006, 19.
8 Case 6/72 Europemballage Corp and Continental Can Co Inc v Commission
(Continental Can) [1973] ECR I-215, § 26.
9 See also the Opinion of AG Kokott in BA v Commission (British Airways Plc v
Commission, C95/04 P) § 69, about the protective purpose of Article 82 being to protect the
structure of the market and thus competition as such because where competition as such is
damaged, disadvantages for the consumers are also to be feared.
10 Opinion in the Oscar Bronner case 231 (Oscar Bronner v Mediaprint C-7/97 [1998 ]
ECR I-7791).
11 British Airways v Commission 264.