Article 102 Flashcards
What is Article 102?
Abuse of a dominant position which may affect trade between member states
What are the 4 elements needed for a claim under Article 102 to be successful?
- An abuse
- Of a dominant position
- That affects trade between member states
What is the definition of dominance?
“Does the undertaking’s economic strength allow it to behave independently of its competitors and consumers”?
What is the definition of a Relevant Product Market (RPM)
A relevant market share is “all the products regarded as interchangeable by the consumer” (United Brands)
What are the two tests for RPM?
- Demand substitutability
2. Supply substitutability
What is the test for demand substitutability?
Would a small but permanent increase in price convince consumers to switch from this to another substitute?
What is the test for supply substitutability?
To what extent are other firms able to supply or capable of producing acceptable substitutes?
In which case did the ECJ find that the Commission had failed to sufficiently consider the issue of supply substitutability, and thus the RPM was wider than first thought?
Continental Can
How is the Relevant Geographic Market defined?
“The area in the common market in which conditions of competition are homogeneous”
United Brands
The initial presumption is that the whole of the EU is the RGM. Which case?
Hilti AG
The RGM must be a “substantial part” of the common market, but may be small. Which case?
The Port of Holyhead (Sea Containers)
The RPM may be very narrow. Which case?
Hugin Kasseregister
Very market shares are good evidence of dominance. Which case?
Hoffman La Roche
Shares of 50+% raise a rebuttable presumption of market dominance. Which case?
AKZO` Chemie
“An abuse occurs when a dominant firm in a market engages in conduct which is intended to exploit it’s dominant position.”
Which case?
Michelin v Commission: a firm in a dominant position has a special responsibility not to allow its conduct to impair undistorted competition on the common [now internal] market
Define “abuse”. Which case?
Hoffman La-Roche
Unfair pricing (dumping) may be an abuse. Which case?
AKZO Chemie
Refusal to supply a distributor in response to them helping a rival brand may be an abuse. Which case?
United Brands
Charging different prices to distributors in different member states may be an abuse. Which case?
United Brands
The abuse must affect trade between member states for it to to come under Article 102. True or false?
True
Which case defines affecting trade between a member state?
Commercial Solvents v Commission
How does Commercial Solvents v Commission define “affecting trade between a member state”?
“An alteration in the structure of competition in the common market”
Article 102 is directly effective. Which case?
BRT v Sabam
