[PDF] EU Competition Law Abuse of Dominance (Article 102 TFEU)

EU Competition Law Abuse of Dominance (Article 102 TFEU)

Article 102 TFEU Article 102 TFEU (ex Article 82 EC, ex Article 86 EC) “Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States

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EU Competition Law

Abuse of Dominance (Article 102 TFEU)

Eirik Østerud

eiros@bahr.no

Outline

Day 1 - Tuesday 4 September

Introduction

Undertaking

Dominance and the relevant market

Effect on trade between Member States

Day 2 - Friday 14 September

The general notion of abuse

Forms of abusive conduct

Objective justification

Day 1 4 #

1. Introduction

2. Undertaking

3. Dominance and the relevant market

4. Effect on trade between Member States

Article 102 TFEU

Article 102 TFEU (ex Article 82 EC, ex Article 86 EC) abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts

Article 101 TFEU

Article 101 TFEU (ex Article 81 EC, ex Article 85 EC) . The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: any

agreement any decision concerted practice contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a)impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b)afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question

Overview of Article 102 TFEU

Prohibits certain forms of unilateral market behaviour

Applies only to "undertakings»

Applies only in so far as the conduct affects trade between Member States Applies only to undertakings holding a dominant market position

Applies only to abusive conduct

Exclusionary

Exploitative

Discriminatory

The concern with market power

Competition law concerned first and foremost with the problems that occur when an undertaking or two or more undertakings have market power Undertakings that have market power enjoy some of the benefits available to a true monopolist harmful to consumer welfare 9 #

Year Undertaking Amount in

2009 Intel 1.060.000.000

2008 Microsoft 860.000.000

2004 Microsoft 497.200.000

2006 Microsoft 280.500.000

1998 TACA (15 undertakings) 273.000.000

2006 Telefonica 151.875.000

1991 Tetra Pak II 75.000.000

2005 AstraZeneca 60.000.000

2006 Tomra 24.000.000

2001 Deutche Post 24.000.000

EU: top 10 fines for abuse of dominance

10 #

1. Introduction

2. Undertaking

3. Dominance and the relevant market

4. Effect on trade between Member States

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