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70 A Gap in the Enforcement of Article 82 Regulation 1/2003 the Commission can publish decisions where it states that an abuse has not been substantiated, the Commission does not currently publish such decisions. Thus, even though there is likely to be a significant number of such cases in the case law of the Commission and the courts, identifying such cases is very difficult. In our analysis we have identified cases dealt at the Member State level, which could not have been addressed by Article 82. As illustrated from the above analysis, the gap in the application of Article 82 is evident, and likely encompasses a large number of cases. The gap includes cases that are addressed at the Member State level by the concept of abuse of economic dependence (applied mainly in exclusionary conduct) and cases that relate to exploitative anti-competitive conduct inducing consumer harm. The number of cases where non-dominant firms can adopt anti-competitive conduct will mainly depend on the degree of differentiation of the products in the market as well as on the relative market shares of the firms. 72 Due to the limitations created by the requirements for differentiation in the products, for similar market shares and for the adoption of anticompetitive conduct of the non-dominant firm, the number of such cases is likely to be smaller than the number of cases that will deal with abuse of a dominant position. However, the gap in the application of Article 82 does exist and should be addressed in cases dealt with by the Commission as it is addressed in several Member States. Before we proceed to assess measures that can rectify this gap in the dominance test, it is useful to examine the treatment of anti-competitive conduct of non-dominant firms by the UK as well as the US competition authorities. As the Office of Fair Trading (OFT) guidance on market investigations73 states, where there is no abuse of a dominant position but structural features of the market nevertheless appear to affect the competitive process adversely, then a market investigation reference will be a possibility. Thus, the UK authorities address the anti-competitive conduct of nondominant firms by conducting market investigations, rather than by enforcing legislation on the abuse of superior bargaining position/abuse of economic dependence. According to the response of the UK to the ICN Questionnaire on Abuse of Superior Bargaining Position, 74 abuse of dominant position law in the UK is geared primarily towards preventing exclusionary conduct, rather than 72 As mentioned above, the other factors necessary for a finding of an abuse by a non-dominant firm which has market power need to be present (eg high barriers to entry, no objective justification etc). 73 Market investigation references. Guidance about the making of references under Part 4 of the Enterprise Act. www.oft.gov.uk. 74 http://www.icn-kyoto.org/documents/abuse.html#questionnaire.
The Gap in the Application of Article 82 71 protecting undertakings in weaker economic positions from those with superior economic bargaining positions. According to the OFT guidance, 75 market investigations’ purpose is to determine whether the process of competition is working effectively in markets as a whole. Market investigations will provide a framework for identifying, analysing and, where appropriate, remedying industry-wide or market-wide competition problems when there is no adequate basis for addressing under the Competition Act 98 (which addresses anti-competitive agreements and unilateral conduct). The OFT will only make references to the Competition Commission (‘CC’) when each of the following criteria has been met: 76 • it would not be more appropriate to deal with the competition issues identified by applying the Competition Act 1998 (CA98) or using other powers available to the OFT or, where appropriate, to sectoral regulators; • it would not be more appropriate to address the problem identified by means of undertakings in lieu of a reference; • the scale of the suspected problem, in terms of its adverse effect on competition, is such that a reference would be an appropriate response to it; • there is a reasonable chance that appropriate remedies will be available. Thus, the OFT will go on to consider a reference to the CC in one of two circumstances: • when it has reasonable grounds to suspect that there are market features, which prevent, restrict or distort competition, but not to establish a breach of the CA98 prohibitions; • when action under CA98 has been or is likely to be ineffective for dealing with the adverse effect on competition identified. The Enterprise Act 2002 provides for market investigations to be carried out by the Competition Commission of the conduct that prevents, restricts or distorts competition. Following a reference it will be for the CC to decide whether competition is indeed prevented, restricted or distorted and (if so) what, if any, action should be taken to remedy the adverse effect on competition or any detrimental effect on customers resulting from it. The harm may be in the form of higher prices, lower quality or less choice of goods or services, or less innovation in relation to goods or services in any market in the UK. 75 Market investigation references. Guidance about the making of references under Part 4 of the Enterprise Act. www.oft.gov.uk. 76 See further: section 131 of the Enterprise Act and Market investigation references. Guidance about the making of references under Part 4 of the Enterprise Act. www.oft.gov.uk
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Introduction The Treaty of Rome 195
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Introduction 3 tion of this concept
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CHAPTER 1 Objectives of Article 82
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Objectives of Article 82 7 economic
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Objectives of Article 82 9 Director
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Objectives of Article 82 11 Virtual
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Objectives of Article 82 13 product
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CHAPTER 2 Concept of Dominance The
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Concept of Dominance 17 The stateme
Page 19 and 20: Concept of Dominance 19 criticisms
Page 21 and 22: CHAPTER 3 Abuse of Superior Bargain
Page 23 and 24: Abuse of Superior Bargaining Positi
Page 43 and 44: CHAPTER 4 The Gap in the Applicatio
Page 45 and 46: The Gap in the Application of Artic
Page 61 and 62: from the legal norm itself. Article
Page 63 and 64: In this book we are focusing on the
Page 69: The Gap in the Application of Artic
Page 79 and 80: CHAPTER 5 How to Rectify the Gap Ge
Page 81 and 82: How to Rectify the Gap 81 As Faull
Page 83 and 84: How to Rectify the Gap 83 of the co
Page 85 and 86: How to Rectify the Gap 85 An argume
Page 87 and 88: How to Rectify the Gap 87 departing
Page 89 and 90: How to Rectify the Gap 89 mentioned
Page 91 and 92: How to Rectify the Gap 91 proportio
Page 93 and 94: How to Rectify the Gap 93 Depending
Page 95: How to Rectify the Gap 95 cases is
Page 98 and 99: 98 A Gap in the Enforcement of Arti
Page 100 and 101: 100 A Gap in the Enforcement of Art
Page 102 and 103: 102 A Gap in the Enforcement of Art
Page 105 and 106: Annex 1 REPORT PREPARED BY THE ICN
Page 107 and 108: Annex 2 REPORT PREPARED BY THE ICN
Page 109: Annex 4 Appendix C of the ICN Kyoto
Page 112 and 113: 112 Bibliography P Callol, P Pignat
Page 114 and 115: 114 Bibliography Guidance on the Co
Page 116 and 117: 116 Bibliography J Leibowitz, ‘Ta
Page 118 and 119: 118 Bibliography I Roudard (1989),
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120 Bibliography The Distillers Com
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