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

94 A Gap in the Enforcement of Article 82
As mentioned above, markets with a similar structure can display different
degrees of intra-market rivalry as a result of many factors. Non-structural
factors that might affect the level of intra-market rivalry can include,
for example, the different ability of, and capacity for, firms to innovate; the
objectives and culture of the firms in the market, their views on the future
development of the market and on the appropriate strategies to meet those
developments; the history of pricing behaviour in the market and the extent
to which transparent prices are available in the market. 47
The assessment of some of the abovementioned criteria (eg objective
justification) may necessitate significant resources. In cases where they are
clearly satisfied (eg existence of objective justification), the authorities will
be able to reject a complaint at an early stage of the assessment process. In
other cases, resources may need to be devoted in order to examine whether
these criteria are satisfied. The devotion of these resources to such an investigation
may be necessary in order to ensure that all conduct of non-dominant
firms inducing consumer harm is captured.
The Commission or a national competition authority will need to
consider the desired portfolio of cases and select priority sectors as well as
policy objectives. Some relevant considerations include whether enforcement
action is the most effective one to stop the infringement as well as the
possibility of another regulator or another legislative tool to address the
allegedly anti-competitive conduct. The opportunities for private enforcement
should also be taken into consideration. Private enforcement for such
claims may also be successful in addressing such conduct. However, the
authorities are likely to be in a better position, as regards resources and the
focus of competition policy, in dealing with such issues.
In addition the competition authority could assess the consumer harm
that arises and thus the resulting benefit from intervention (product and
geographic extent of the alleged conduct, firms involved etc.). The authority’s
action against abuses by non-dominant firms will have a deterrent
effect on other non-dominant firms that may be abusing their market
power. The same deterrent effect will dissuade firms in general from adopting
anti-competitive conduct. Aggravating and mitigating factors can also
play a role in choosing to address a particular conduct. 48 Finally, the precedential
value of addressing the conduct can also be very important in shaping
the future case law related to anti-competitive conduct of non-dominant
firms. Since, the ability of the Commission to address such conduct can be
easily derived through CFI/ECJ case law, the precedential value of such
47 See further: Market Investigation References: Competition Commission Guidelines,
www.competition-commission.org.uk.
48 For a list of such factors, see further: Competition Prioritisation Framework, Office of
Fair Trading, www.oft.gov.uk.