EU - Competition II

Question 0

United Brands

Answer 0

1. A dominant position is one that allows an undertaking to behave independently of both its customers and competitors by virtue of it’s economic strength
2. The relevant product market is determined on the basis of elasticity of demand/substitutability
3. The relevant geographic market is the area of the EU in which conditions of competition are homogenous

Question 1

Art. 102 TFEU

Answer 1

Prohibits undertakings from abusing a dominant position in relation to inter-Community trade

Question 2

Michelin v Commission

Answer 2

1. Elasticity of supply is also a useful test for determining the relevant product market. Would a sustained price increase lead to other suppliers entering the market from different sectors?

Question 3

Hilti AG

Answer 3

1. Relevant geographic market is presumed to be the whole of the EU, unless specific factors rebut the presumption in favour of a smaller market:
   - transportation costs
   - product characteristics, e.g. perishable, fragile, etc.
   - shipment patterns
   - location of plants
2. Tie-in agreements are generally evidence of abuse, unless there is objective justification for them, e.g. liability protection

Question 4

B&I/Sealink - Port of Holyhead

Answer 4

Relevant geographical market may be spatially very small, provided it is economically significant

Question 5

Hofmann La Roche

Answer 5

1. Very large market shares are usually prima facie conclusive to establish dominance (> 70%)
2. Dominance is a weakening of competition/hinderance of it’s growth/maintenance
3. Abusive discount policies based on fidelity relationships only will constitute abuse

Question 6

Italian Flat Glass

Answer 6

CFI held that where several comapnies are joined by economic links, they may be in a dominant position

Question 7

AKZO Chemie v Commission

Answer 7

1. Shares of > 45% give rise to a rebuttable presumption of dominance
2. Unfair pricing (excessively high/predatory) will constitute abuse

Question 8

BA v Commission

Answer 8

Market shares of > 40% are rarely dominant, unless there is a major gap between company and it’s nearest competitor

Question 9

TetraPak II

Answer 9

Dominance may be established by existence of patents/IPRs or other barriers to entry

Question 10

Boosey v Hawkes

Answer 10

An undertaking may be found to be ia position of dominance where it boasts of it’s superiority in terms of financial/technical resources

Question 11

Hugin Kassierregister

Answer 11

Refusal to supply distributors without reasonable commercial justification, e.g. poor payment history, will constitute abuse

Question 12

Hopner and Elser v Macrotron GmbH

Answer 12

An undertaking is any entity, whether a natural or legal person, engaged in economic activity

Question 13

STM v Maschinenbau Ulm

Answer 13

Abuse of dominant position must affect, or be likely to affect, the pattern of trade between member states

Question 14

Commercial Solvents v Commission

Answer 14

Affecting the pattern of trade is altering the structure of competition within the internal market

Question 15

BRT v Sabam

Answer 15

Art. 102 TFEU has direct effect, so an injured third party may claim damages/injunction to restrain abuse in a national court

Question 16

Art. 263 TFEU

Answer 16

Undertaking may appeal judgement of commission in JR proceedings