Article 102

Question 1

What is Article 102?

Answer 1

Abuse of a dominant position which may affect trade between member states

Question 2

What are the 4 elements needed for a claim under Article 102 to be successful?

Answer 2

1. An abuse
2. Of a dominant position
3. That affects trade between member states

Question 3

What is the definition of dominance?

Answer 3

“Does the undertaking’s economic strength allow it to behave independently of its competitors and consumers”?

Question 4

What is the definition of a Relevant Product Market (RPM)

Answer 4

A relevant market share is “all the products regarded as interchangeable by the consumer” (United Brands)

Question 5

What are the two tests for RPM?

Answer 5

1. Demand substitutability

2. Supply substitutability

Question 6

What is the test for demand substitutability?

Answer 6

Would a small but permanent increase in price convince consumers to switch from this to another substitute?

Question 7

What is the test for supply substitutability?

Answer 7

To what extent are other firms able to supply or capable of producing acceptable substitutes?

Question 8

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?

Answer 8

Continental Can

Question 9

How is the Relevant Geographic Market defined?

Answer 9

“The area in the common market in which conditions of competition are homogeneous”

United Brands

Question 10

The initial presumption is that the whole of the EU is the RGM. Which case?

Answer 10

Hilti AG

Question 11

The RGM must be a “substantial part” of the common market, but may be small. Which case?

Answer 11

The Port of Holyhead (Sea Containers)

Question 12

The RPM may be very narrow. Which case?

Answer 12

Hugin Kasseregister

Question 13

Very market shares are good evidence of dominance. Which case?

Answer 13

Hoffman La Roche

Question 14

Shares of 50+% raise a rebuttable presumption of market dominance. Which case?

Answer 14

AKZO` Chemie

Question 15

“An abuse occurs when a dominant firm in a market engages in conduct which is intended to exploit it’s dominant position.”

Which case?

Answer 15

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

Question 16

Define “abuse”. Which case?

Answer 16

Hoffman La-Roche

Question 17

Unfair pricing (dumping) may be an abuse. Which case?

Answer 17

AKZO Chemie

Question 18

Refusal to supply a distributor in response to them helping a rival brand may be an abuse. Which case?

Answer 18

United Brands

Question 19

Charging different prices to distributors in different member states may be an abuse. Which case?

Answer 19

United Brands

Question 20

The abuse must affect trade between member states for it to to come under Article 102. True or false?

Answer 20

True

Question 21

Which case defines affecting trade between a member state?

Answer 21

Commercial Solvents v Commission

Question 22

How does Commercial Solvents v Commission define “affecting trade between a member state”?

Answer 22

“An alteration in the structure of competition in the common market”

Question 23

Article 102 is directly effective. Which case?

Answer 23

BRT v Sabam