Case law - abuse of the dominant position

Question 1

Intel

Answer 1

Commission did not object to rebates in themselves (which can often advantage the consumer), but to the conditions attached to those rebates (that the computer companies must buy from Intel rather than rival company)

Question 2

B&I Line plc v Sealink Harbours Ltd and Sealink Stena Ltd

Answer 2

Outlined the Essential Facility Doctrine

‘a dominant undertaking which both owns or controls and itself uses an essential facility (facility without access to which competitors cannot provide services to their customers, and which refuses its competitors access to that facility or grants access to competitor only on terms less favorable than those which it gives it own services, infringes article 102’

Seallink in this case used its control of the port to introduce a new sailing schedule which suited the commercial interests of its ferries but caused considerable disruption to the loading and unloading of B&I ferry

Question 3

Tetra Pak

Answer 3

Predatory pricing

Question 4

Azko

Answer 4

Predatory pricing

Question 5

United Brands

Answer 5

Excessive pricing -The commission found that the price that United Brands charged its customers in some MSs where excessive in relation to the economic value of the product supplied

Question 6

British Leyland

Answer 6

Excessive pricing

British Leyland raised the charge to distributors for issuing a certificate of conformity fo left hand drive Metros from £25 to £150. The charge for the certificate for right hand drive Metros remained at £25

The ECJ accepted the Commission’s decision that this was an abuse of a dominant position as the charge for left hand vehicles was excessive

The only difference between left hand and right hand drive models were that for left hand drive vehicle was the need to verify that the left hand drive models have undergone four essential alterations (commission said that the fee was disproportionate to the economic value of the service being provided)

Question 7

Hoffmann-La Roche

Answer 7

Discount and Rebates (abuse of dominant position)

ECJ: it is designed through the grant of a financial advantage to prevent customers from obtaining their supplies from competing producers

Question 8

Microsoft

Answer 8

Tie in agreements (abuse of dominant position where the undertaking agrees to supply to someone, only if the person agrees to accept further goods or supplementary conditions

Criteria established in Microsoft
• The tying and tied goods must not be within the same product market
• The undertaking must be dominant in the tying product market
• Customers get no choice whether to accept the tied product with the tying product
• The tying closes out any competition

Question 9

SABAM

Answer 9

Unfair Terms and Abuse of dominant position

SABAM was a cooperative association of authors, composers and publishers which administered, managed and commercially exploited all of the copyrights and other rights of its members. Its standard contracts required members to assign all such rights over their current and future works to the association. It also provided that the association would retain those rights for 5 years after withdrawal from the association.

The court of justice held that SABAM had abused its dominant position by imposing unfair conditions. It accepted that the compulsory assignment of all copyrights, both present and future, without a distinction being drawn between different categories, went beyond what was absolutely necessary to attain this objective.