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

80 A Gap in the Enforcement of Article 82
Thus, the rationale of countries that have legislation addressing concepts
such as abuse of superior bargaining position/abuse of economic dependence
is the inability of Article 82 type legislation to capture all anticompetitive
conduct.
As regards the gap in the application of Article 82, the concept of dominance
is found in two sets of legal provisions, namely Article 82 5 and the
ECMR. 6 The original ECMR 7 did not expressly refer to the notion of a
dominant position on the part of one or more undertakings. Article 2(3) of
the original ECMR states that: ‘A concentration which creates or strengthens
a dominant position as a result of which effective competition would be
significantly impeded in the common market or in a substantial part of it
shall be declared incompatible with the common market’. By focusing on
‘the creation or strengthening of a dominant position’, it employed a
language reminiscent of that used in Article 82.
The Recast ECMR 8 is applied ex ante, and thus the focus is on the
changes in the structure of the market that come as a consequence of the
merger. The purpose of the merger control is not to prevent future abuses
of a dominant position, but to ensure that the post-merger market structure
will not be less competitive.
Article 82 is applied ex post and thus the focus is on the past conduct of
the undertaking and on the operation of the market during that period. In
addition, Article 82 focuses on market behaviour, 9 while the focus of both
the original and the Recast ECMR is on the future market structure rather
than on the past development of competition in the market. The
Commission changed the substantive test for mergers from the dominance
test 10 to the Significant Impediment to Effective Competition test (‘SIEC’) 11
in order to capture mergers in differentiated product markets that could
have escaped merger control. 12 Thus, the Commission realized the gap in
the dominance test and rectified it.
5 Articles 81 and 82 of the EC Treaty (ex 85 and 86 prior to the Treaty of Amsterdam
which came into force on 1 May 1999. Article 12 of the Treaty of Amsterdam provided for the
renumbering of the EC Treaty Articles). The EC Treaty was signed on 25 March 1957.
6 Article 82 deals with the abuse of an already existing dominant position (ex post),
whereas the ECMR deals with the prospective assessment of dominance (ex ante).
7 Council Regulation (EEC) 4064/89 of 21 December 1989 on the control of concentrations
between undertakings [1989] OJ L395/1, corrigendum [1990] OJ L257/14.
8 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations
between undertakings (the EC Merger Regulation), (Recast ECMR), OJ L 24, 1–22.
9 See further: P Roth, Bellamy and Child European Community Law of Competition (5th edn, Sweet and Maxwell, London, 2001) 405.
10 Council Regulation (EEC) 4064/89 of 21 December 1989 on the control of concentrations
between undertakings [1989] OJ L395/1, corrigendum [1990] OJ L257/14.
11 Regulation 139/2004.
12 These cases are referred as gap cases. The ‘gap’ in the dominance test corresponds to the
situation where the post-merger entity’s market power would not amount to single firm or
collective dominance but where the merger may nonetheless lead to non-coordinated effects in