Home / Summaries / Steiner and Woods EU Law / market-competitors-position

EU COMPETITION LAW - Article 102: Abuse of A Dominant Position - Element 2: Dominance

Q: United Brands Co v Commission (case 27/76)

Dominance was defined in this case as 'a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors , customers , and ultimately of its consumers '.

Q: AKZO Chemie BV [1986] 3 CMLR 273, para 67

The power to exclude effective competition is not only being independent from competitive factors but may also involve the ability to eliminate or seriously weaken existing competitors or to prevent potential competitors from entering the market.

Q: Europemballage Corp and Continental Can Co Inc v Commission (case 6/72)

A position can be dominant within the meaning of Article 102 only if it is dominant in a relevant market . Thus, to access if an undertaking has sufficient economic strength to behave independently of, or even exclude, competitors, it is necessary to ascertain the relevant market in which competition is said to exist.

Q: Instituto Chemioterapico Italiano SpA v Commission (cases 6 and 7/73)

The RPM is one in which products are substantially interchangeable .

7 important questions on EU COMPETITION LAW - Article 102: Abuse of A Dominant Position - Element 2: Dominance

United Brands Co v Commission (case 27/76)

Dominance was defined in this case as "a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers, and ultimately of its consumers".

AKZO Chemie BV [1986] 3 CMLR 273, para 67

The power to exclude effective competition is not only being independent from competitive factors but may also involve the ability to eliminate or seriously weaken existing competitors or to prevent potential competitors from entering the market.

Europemballage Corp and Continental Can Co Inc v Commission (case 6/72)

A position can be dominant within the meaning of Article 102 only if it is dominant in a relevant market.

Thus, to access if an undertaking has sufficient economic strength to behave independently of, or even exclude, competitors, it is necessary to ascertain the relevant market in which competition is said to exist.

Instituto Chemioterapico Italiano SpA v Commission (cases 6 and 7/73)

The RPM is one in which products are substantially interchangeable.

Notice on the Definition of the Relevant Market [1997] OJ C372

This Notice is NOT LEGALLY BINDING (soft law) but EU courts have referred to it in the case law.
This Notice does NOT OVERRULE existing CJEU case law.
It may be not possible to be applied because the lack of data, new products or market.
There is this "cellophane fallacy" in the Notice:

The Notice assumes that the market is competitive
If market already monopolised, test would give wrong result (i.e. if in a monopoly, a price increase would lead to a switch to inferior substitutes and RPM would be WIDER; high degree of substitutability).

Does the undertaking have substantial market power?

Yes, dominant position.
No, not in DP.

What are the issues that needed to be consider in determining factual dominance?

Constraints imposed by the existing supplies from, and the position on the market of, actual competitors

Market share
The length of time during which a firm has held its position in the RPM
Fragmented markets

Constrains imposed by the credible threat of future expansion of actual competitors or entry by potential competitors (expansion or entry)

Legal barriers
Barriers to entry/expansion
Financial and technological resources
Degree of vertical integration
Behaviour/Conduct
Barriers to entry

Constraints imposed by the bargaining strength of the undertaking's customers (countervailing buyer power).

The question on the page originate from the summary of the following study material:

Steiner and Woods EU Law | 9780199685677 | Lorna Woods, et al

View summary

A unique study and practice tool
Never study anything twice again
Get the grades you hope for
100% sure, 100% understanding

Remember faster, study better. Scientifically proven.

Topics that are related to EU COMPETITION LAW - Article 102: Abuse of A Dominant Position - Element 2: Dominance