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

84 A Gap in the Enforcement of Article 82
Certain issues that may arise in pursuing this option is that not all Member
States have such legislation. Thus, it may be difficult for all Member States
to agree on this new soft legislation. However, we should note that not all
Member States have leniency provisions in their legislation or the SIEC test
as their substantive test for merger assessment, 21 but agreed to a leniency
notice and to a new merger regulation based on the SIEC test.
As regards addressing the conduct of non-dominant firms due to some
difficulties in changing the EC Treaty in order to include such provision in
the legislation rectifying the gap through the future case law development
may prove to be a more desirable means of addressing the inability of
Article 82 and of some relevant national provisions to apply to non-dominant
firms inducing consumer harm.
The Commission as well as the national authorities should avoid a structural
approach to the definition of dominance but rather look at the ability
of the undertaking to behave independently of its competitors, its customers
and ultimately of consumers. 22 They should look at the market in a
dynamic analytical frame in assessing whether the conduct of non-dominant
firms (eg the second largest firm) in the market harms consumer welfare
and thus should be sanctioned. Such development in the Commission’s decisional
practice bears the risk of appeal to the CFI/ECJ.
It is my belief that such risk is acceptable and should be taken by the
Commission and other competition authorities in order to advance the
enforcement of competition legislation and to improve competition policy.
Although there may be some successful appeals against the initial decisional
practice of the authorities, the authorities as well as the courts will need to
‘adapt’ to a less structural approach to the dominance concept which will
ensure that all anti-competitive conduct of non-dominant firms inducing
consumer harm can be addressed.
An argument against the ability of the Commission to capture harmful
conduct of non-dominant firms relates to the possible localized nature of
such conduct (especially that related to abuse of superior bargaining position/abuse
of economic dependence). Some of the cases presented herein
illustrate that such conduct may not be de minimis. Even though the latter
conduct may be de minimis in some cases, the Commission as well as some
Member States (which do not have such legislation) will be able to address
conduct of non-dominant firms which may be harming consumer welfare
and of course will not be de minimis. 23
21 Notably large Member States such as Italy and Germany which fiercely opposed the
change in the substantive legal test for merger assessment.
22 Case 27/76, United Brands Co. and United Brands Continental BV v Commission [1978]
ECR I-207.
23 An interesting question arises as to whether the Commission should be able to address harmful
conduct which cannot be caught by the abuse of dominance legislation of Member States.