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

72 A Gap in the Enforcement of Article 82
Section 131(2) of the Act states that, for the purpose of a market investigation
reference, a feature of a market in the United Kingdom shall be
construed as:
(a) the structure of the market concerned or any aspect of that structure;
(b) any conduct (whether or not in the market concerned) of one or more
than one person who, supplies or acquires goods or services in the
market concerned; or
(c) any conduct relating to the market concerned of customers of any
person who supplies or acquires goods or services.
Conduct includes any failure to act, whether intentional or not and any
other unintentional conduct. The CC will have regard to any conduct of the
firms in a market (whether sellers or buyers) that could, in the circumstances
of the particular market, have an adverse effect on competition
(whether in the market in which the firms themselves are engaged or in
some other market, for example, the market of the sellers’ suppliers or
customers). The Competition Commission may require remedial measures
as it considers reasonable and practicable to mitigate or prevent the adverse
effect on competition or any detrimental effects on customers. 77
A firm may have market power, and the capacity to act in ways that may
prevent, restrict or distort competition, with a market share below that
usually regarded as necessary to suggest dominance for the purposes of
CA98. For example, the Competition Commission may assess the effects on
competition of certain forms of discounts and rebates. In many cases,
discounts and rebates are normal components of the competitive process
and will, in general, not be a cause for concern. However, where a firm has
market power then the CC will consider whether any discounts or rebates
offered might have adverse effects on competition. Thus, the CC approach
towards discounts and rebates encompasses the assessment of such conduct
by firms having market power and which are not necessarily dominant. The
Commission cannot address conduct involving discounts or rebates unless
the undertaking is dominant, curtailing thus its ability to capture anticompetitive
conduct by non-dominant firms.
The ability to adopt anti-competitive conduct will depend upon the effectiveness
of the constraints exerted by its competitors or its customers.
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, adverse
effects on competition induced by conduct that does not involve either
77 Market Investigation References: Competition Commission Guidelines, www.
competition-commission.org.uk.