Prohibition of abusing a dominant position - Elements of an abuse - Types of abuse
9 important questions on Prohibition of abusing a dominant position - Elements of an abuse - Types of abuse
What is the strategy in exclusionary abuse 'refusal to supply'?
- Refusal to supply in case of (beginning) self-dependent marketing of products and services
- Refusal of access to production facilities and product components which are meant for own use: essential facilities.
ECJ case C-418/01, judgement of 29 April 2004, IMS Health. What were the facts of the case?
- data (reports) on regional sales of pharmaceutical products in Germany to pharmaceutical laboratories formatted according to the brick structure (geographic areas)
- not only sold, but also distributed for free to pharmacies and doctors’ surgeries
- became industry standard -> adaptation of IT and distribution structures by pharmacies/doctors
- IDC tried to market similar reports, structured differently -> failed -> adapted to structure of IMS reports
ECJ case C-418/01, judgement of 29 April 2004, IMS Health. What was the decision of the ECJ?
- see also ECJ case C-7/97, Bronner
- exclusive right of reproduction forms part of the rights of the owner of an intellectual property right
- in exceptional circumstances making use of this right constitutes abuse of dominant person
- refusal of access to a product/service necessary for certain activity -> abuse where three conditions are met:
- refusal prevents the emergence of a new product
- no justification
- danger of excluding any competition
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What are three other strategies with exclusionary abuse?
- Predatory pricing: offer below own production costs
- bundling
- customer retention: excluding dealing obligations, certain discounts or rebates
ECJ case C-95/04, judgement of 15 March 2007, British airways. What were the facts of the case?
- loyalty commission scheme (bonuses) for travel agents with BA
- consistent or higher turnover of BA tickets: higher bonuses
- percentage of commission not only related to selling above the
threshold level, but to all tickets sold during the respective time -> significant losses (no bonus) with only minimal variation possible - COM: This regime has an exclusionary effect vis-à-vis competing airlines.
ECJ case C-95/04, judgement of 15 March 2007, British airways. What was the decision of the ECJ?
- criteria and modalities of commission scheme
- assessment whether scheme aims at
- removing or restricting the agents’ freedom to choose other sources of supply
- barring competitors from access to the market,
- applying dissimilar conditions to equivalent transactions with other trading partners.
- strong pressure where bonus extends to the entire turnover and where bonus is granted by an undertaking with a very high market share
- no objective economic justification for this scheme
What is exploitative abuse?
What are the different strategies with exploitative abuse?
- Excessive prices and unfair conditions
- Limiting production
- Discrimination of trading partners
What does abuse of market structure mean with merger control?
- Regularly takeover of remaining competitors
- merger control
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