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

82 A Gap in the Enforcement of Article 82
prior to the adoption of the original ECMR, the Commission used Article
82 to address the anti-competitive effects arising from a merger. In Re
Continental Can 16 the Commission found an abuse of Article 82 where a
takeover bid was made by a dominant undertaking for a smaller competitor.
The Commission argued that such an acquisition might constitute an
abuse since it would adversely affect the structure of competition in a
market where competition was weakened from the presence of the allegedly
dominant undertaking. The ECJ annulled the Commission’s decision on the
basis that it did not identify the market accurately. However, the ECJ
confirmed that Article 82 could apply in a situation where a dominant
undertaking was acquiring another undertaking. 17
Thus, if the dominance test in merger control cannot capture some mergers
in certain types of market structure, it cannot capture unilateral conduct
under Article 82 in the same types of market structure. Since the
Commission addressed the gap in the original ECMR why has the
Commission not addressed the same gap in Article 82?
As abovementioned, the Economic Advisory Group for Competition
Policy argued that the effects-based approach needs to put less weight on a
separate verification of dominance and focus on sustaining a consistent and
verifiable assessment of significant competitive harm.
In proposing to reduce the role of separate assessments of dominance
and to integrate the substantive assessment of dominance with the procedure
for establishing competitive harm itself, we depart from the tradition
of case law concerning Art 82 of the Treaty, but not, we believe,
from the legal norm itself. The case law tradition of having separate
assessments of dominance and of abusiveness of behaviour simplifies
procedures, but this simplification involves a loss of precision in the
implementation of the legal norm. 18
A means to rectify the gap in the application of Article 82 would be to place
less importance on proving whether a firm is dominant by placing unwarranted
focus on the market share of the firm and focus on whether the firm
has the market power to adopt anti-competitive conduct in the market. In
a differentiated products market more than one firm has the ability to adopt
such conduct, and following the wording of the case law, in the definition
16 Europemballage Corporation [1972] OJ L7/14.
17 As far as Article 82 is concerned, its shortcomings as regards to its application in merger
assessment relate to the fact that it applies to concentrations already enjoying a dominant position.
A transaction which creates a dominant position, as may be the case with a merger or
acquisition falls outside the ambit of Article 82.
18 EAGCP Report.