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

88 A Gap in the Enforcement of Article 82
A. Enforcement Issues
The ability of the Commission to penalize conduct of non-dominant firms
is likely to lead to an increased number of such complaints which will be
very resource demanding. Thus, the Commission should have certain filters
in order to deal with the cases that are likely to produce the biggest benefits
for consumers. The Commission should have as its objective the welfare
of consumers. In addition, the Commission should apply criteria in deciding
which cases to take forward.
Six of the seven agencies which responded to the ICN questionnaire and
have specific provisions for addressing abuse of superior bargaining position
mentioned the probability of finding an alternative trade partner as one
of the criteria. Five of the seven agencies identified the degree of trade
dependence on the firm by the other, as well as the supply and demand
forces of the product or service and difference in scale of business between
the parties as relevant criteria for assessing such conduct.
The French authorities apply four criteria in deciding which abuse of
economic dependence cases merit further investigation. The French criteria
are (1) notoriety of the trading partner; (2) significance of its market share;
(3) importance of the part of turnover achieved with this trading partner in
the total turnover; and (4) difficulty to find alternative commercial partners
offering similar commercial solutions.
For each complaint received which meets these four criteria, it will be
assumed that it entails economic dependence. After substantiating the existence
of economic dependence the authorities will examine whether there is
an abuse and whether the abuse affects competition. Complaints which
meet the ‘economic dependence’ and the ‘abuse’ criteria are likely to also
have an adverse impact on competition and thus will be investigated further
by the authorities. Since 1986, there have been between 40 and 50
complaints investigated which led to seven condemnation decisions. The
Bundeskartellamt noted 32 that according to the German legislation all
complaints need to be assessed. However, if a fundamental issue is involved
it will surely take a case forward. In addition, if a particular conduct has
ramifications which affect other undertakings/individuals in addition to the
complainant, the Bundeskartellamt will open an investigation. Finally, the
Bundeskartellamt added that the availability of resources will also be taken
into account in deciding which cases to take forward.
Authorities should have some filtering criteria which will comprise of
prioritization criteria and initial assessment criteria. Not all complaints
lodged before the authorities will merit further investigation. As above-
32 In a telephone conversation between Ioannis Kokkoris and Markus Lange, Head of the
International Section of the Bundeskartellamt.