Article 102 Flashcards
Definition of Dominance (United Brands)
“Economic strength which enable it to prevent effective competition being maintained” …. “By giving it the power to behave to an appreciable extent independently of its competitors”
Relevant Product Market (United Brands)
Dominant in banana market NOT fresh fruit market.
Bananas satisfy the needs of the v young, the old and sick
Are not interchangeable
relevant product market (Michelin)
market = replacement tyres for heavy duty vehicles not the tyre market in general
SSNIP test
Nestlé/Perrier
Ability to increase price and still hold market share
Relevant geographic market (United Brands)
clearly defined geographic area in which it is marketed
Where the conditions of competition are sufficiently homogenous
Relevant geographic market (RTE + ITP)
One MS and part of another = RGM
Assessing market power
over 50% market share leads to a rebuttal presumption of dominance.
Hoffman La-Roche: most important factor in determining dominance = market share
Other indicators of dominance
superior technology- Unite Brands + Michelin
Intellectual Property Rights- Name of brand is so associated with product
Unavoidable trading partner- British Airways
Overall structure of undertaking
Essential facilities doctrine
Stena
Abuse of a Dominant position definition
Michelin- “Practices which are likely to affect the structure of a market where, as a direct result of the undertaking, competition has already been weakened and which through methods different from those governing normal competition based on traders performance”
“Have the effect of hindering the maintenance or development of the level of competition still existing on the market
Unilever Italia
May be a breach of article 102 owing to abuse by distributor
resolution of disputes
Art 102 procedures are complex and timely. therefore the Commission is o the view that timely resolutions would be favourable
Eg. IBM case
AB Inbev
Resolution: fine of 200 million, cooperation, agreed to change product labelling to encompass both French and Dutch
Interim measures
Broadcom- “Broadcom’s behaviour is likely, in the absence of intervention, to create serious and irreversible harm to competition”
Commissioner Almunia
“The prospects for economic growth are hampered if dominant firms are allowed to raise barriers to entry and prevent/constrain the innovations of rivals”
Google 1
2017-fined 2.42 billion
Giving illegal advantage to another google product on google shopping
Google 2
2018-fined 4.34 billion
required customers to preinstall google search engine and to only install it
Google 3
2019- Fined 1.49 billion
preventing rivals placing ads on search engines
Outcomes of Google
Google Shopping- commission decision upheld
Google Android- General court rules in favour of commission- being appealed to ECJ
Google Adsense- General court annuls commission decision
