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

Conclusion
This book has addressed the gap in the enforcement of Article 82 and in
some of the relevant national provisions. It also dealt with the inability of
the Commission as well as that of some Member States to capture conduct
that relates to abuse of superior bargaining position/abuse of economic
dependence.
Consumer harm induced by anti-competitive conduct of non-dominant
firms can arise in markets where firms compete with differentiated products
and the products of the non-dominant rivals are not close substitutes.
Similarly, they may arise if competitors are not close competitors because of
their geographic location. In the case where products are differentiated
based on brand image, technical specifications, quality, or level of service,
customers often prefer different suppliers. If the incumbents can alter their
product line and become close substitutes to the allegedly non-dominant
firm, the induced harm from the non-dominant firm’s anti-competitive
conduct will be mitigated. Furthermore, in case competitors are located
within close proximity, even if the relevant geographic market is relatively
large, competition can be localized and the geographic location of suppliers
will constitute a significant competitive factor.
In general, if there are a number of alternative suppliers to whom a
significant number of customers are willing to turn, the threat of losing
these customers may be adequate to place a constraint on the non-dominant
firm. However, product differentiation as well as the inability of competitors
to react by either increasing output (if spare capacity is limited), or
repositioning in order to place a constraint on the non-dominant firm, is
conducive to consumer harm arising from the non-dominant firm’s anticompetitive
conduct. 1
Some EU jurisdictions apply the concept of abuse of superior bargaining
position/abuse of economic dependence in order to address anti-competitive
conduct of non-dominant firms. The scope of application differs
amongst these countries (eg only on buyer side, grocery sector). The
Commission though does not apply this concept at all. It risks thus not
addressing anti-competitive conduct of non-dominant firms which induces
consumer harm and would be addressed by the national legislation of
Member States. Although the ability of Member States to apply such
1 Concerns of consumer harm induced by anti-competitive conduct of non-dominant firms
can also arise if the suppliers’ capacities are the main driver of competition, rather than product
differentiation, and competitors would be unlikely to react to an increased demand arising
from the adoption of an anti-competitive conduct by the non-dominant firm by increasing
output due to capacity constraints they may be facing.