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

How to Rectify the Gap 93
Depending on whether the product of the non-dominant undertaking is
homogeneous or differentiated, the impact on consumers will vary since
their ability to find alternative sources of supply will vary.
• Lack of objective justification.
Where an undertaking has been found to have infringed Article 82, the
undertaking can defend its conduct by arguing that it is ‘objectively justified’.
Should the undertaking succeed in this defence, the conduct will not
amount to an abuse. 45 This concept, developed by the ECJ and the
Commission, distinguishes abusive conduct from that which is pursued
as a matter of legitimate commercial policy. However, this defence
cannot apply to conduct whose aim is to weaken competition. In addition,
it involves an element of proportionality. 46
A dynamic, rather than static, analysis of the market structure will allow
the Commission to perform an accurate assessment of the anti-competitive
conduct of non-dominant firms. Such a dynamic analysis will incorporate a
number of other structural factors beyond market shares and market
concentration that can affect the degree of intra-market rivalry in a market.
Such dynamic analysis would entail the assessment of the extent of intramarket
rivalry which will depend on whether firms’ cost structures are very
similar or not, and how low-cost firms utilize this advantage. In addition
the degree of spare capacity in a market and the ease with which existing
capacity can be expanded are two additional factors that may influence the
degree of intra-market rivalry. Furthermore, the ownership and organizational
form of firms might also affect the degree of intra-market rivalry.
and assess the extent to which such a negative effect on consumers is potentially outweighed
by efficiency gains. The identification of competitive harm requires spelling out a consistent
business behaviour based on sound economics and supported by facts and empirical evidence.
Similarly, efficiencies and how they are passed on to consumers should be properly justified on
the basis of economic analysis and grounded on the facts of each case.’
45 Rousseva (2006) argues that the scope of objective justification is not entirely clear but it
has generally been accepted that the objective justification refers to public policy concerns or
other objective factors, such as crisis in the industry, which force undertakings to deviate from
their normal course of conduct. She conducts an analysis of important precedents and adds
that Community Courts understand the concept of objective justification to include only two
types of considerations: (i) purely objective factors beyond the control of undertakings (not
only dominant ones) which prevent those undertakings from carrying out their normal course
of conduct; and (ii) public policy considerations which are generally of a non-economic nature
but in particular circumstances, for example where there is a need to provide efficient service
to the public, may be given an economic dimension. See further: Rousseva E, ‘The Concept of
‘Objective Justification’ of an Abuse of a Dominant Position: Can it help to Modernise the
Analysis under Article 82 EC?’ [2005] 2(2) Comp L Rev.
46 C Stothers (2001) ‘Refusal to Supply as Abuse of a Dominant Position: Essential Facilities
in the European Union’ [2001] 7 ECLR 256, 260.