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35 Cards in this Set
- Front
- Back
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United Brands Co v Commission
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Dominance: 'A position of economic strength enjoyed by an undertaking that enables it to prevent effective competition . . . on the relevant market by giving it the power to behave to an appreciable independently of its competitors , customers . . and consumers.'
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United Brands
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Demand substitutability assessed on the basis of product characteristics.
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Hugin Kassaregister AB
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Demand substitutability assessed on the basis of product use.
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Commercial Solvents
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RPM can be an intermediate market.
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Continental Can
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Decision annulled: the Commission had not considered supply-side substitutability.
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TV Listings
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The relevant geographic market was the area to which the use of the product was limited.
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Michelin NV
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One Member State was the geographical market and a substantial part of the internal market.
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Sealink
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The geographic market, the seaport of Holyhead, constituted a substantial part of the internal market.
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Hoffmann-La Roche
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A very large market share creates a position of strength which may in itself amount to a dominant position.
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Hilti
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A share of between 70% and 80% in the relevant market was 'in itself a clear indication of a dominant position'.
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United Brands
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Market structure may indicate dominance.
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United Brands
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Financial and technological resources indicate dominance.
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United Brands
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Vertical integration indicates dominance.
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TV Listings
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Intellectual property rights are taken into account in assessing dominance.
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United Brands
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Excessive price: one which 'has no reasonable relation to the economic value of the product supplied'.
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British Leyland
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The prices charged were disproportionate to the service provided and therefore excessive.
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United Brands
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Pricing was based purely on what the market would bear, and therefore an abuse.
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Hoffmann-La Roche
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Customers' commercial freedom was limited. The 'English clauses' gave Roche access to information about rivals' prices, allowing it to react quickly to reduce prices and undermine competition.
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Hilti
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Tying-in practices: an abuse.
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AKZO Chemie
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Pricing below cost is predatory and an abuse if intended to eliminate competition.
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Commercial Solvents
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Refusal to supply: an abuse
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United Brands
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Refusal to supply: an abuse.
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Hilti
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Import/export restrictions: an abuse.
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Société Technique Minière
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Effect on trade between Member States: a 'direct or indirect, actual or potential . . .'effect is sufficient.
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For an infringement of Article 102 to occur, there must be
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An abuse;
By one or more undertakings; Of a dominant position; Within the common market or in a substantial part of it; Having an effect on trade between member states. |
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Dominant position
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A position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors and customers and ultimately of the consumers. (Hoffman-La Roche)
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Dominance
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Dominance exists where an undertaking has a position of economic strength which enables it to prevent effective competition by affording it the power to behave to an appreciable extent independently of its competitors, customers and consumers.
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Demand side substitution
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identifies which products, if any, are regarded by customers as effective substitutes for those under consideration.
"SSNIP" test ("small but significant non-transitory increase in price"). |
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"SSNIP" test
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looking at the narrowest set of products which might plausibly form a market, and asking what would happen if a hypothetical monopolist of that set of products sought to increase the price of the products by a small but significant permanent (i.e. non-transitory) amount of, say, 5% to 10%. Would customers then switch to the closest available substitute products? If not, that set of products forms the relevant product market.
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Supply-side substitution
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whether, in the event of such a 5% to 10% price increase, other businesses which are not currently supplying that particular product might switch some of their existing facilities to supplying the product, or a close substitute - for example, would suppliers of pears be able to switch to supplying bananas? Answering this question involves a consideration of potential entry barriers. Can resources devoted to supplying pears be easily switched into bananas? Would consumers insist on buying "Chiquita" brand bananas (due to brand loyalty)? Do licences have to be obtained?
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Market shares
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In addition to ascertaining the size of the market share, it is also important to ascertain the length of time during which it has been held. The inability of smaller players to make inroads into a firm's large market share over a period of time will be a strong indication of dominance, particularly if the firm has increased prices without losing market share.
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Other factors relevant to dominance
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Competitive constraints imposed by existing competitors;
Expansion or new entry; Countervailing buyer power; Intellectual property rights; Financial and technological resources (United Brands); Vertical integration (UB); Conduct (UB). |
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Essential facilities
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the owner of a facility or infrastructure such as a sea port, may, by virtue of such ownership, have a dominant position on a market, and the refusal to give access to it to competitors on non-discriminatory terms may, therefore, constitute an abuse (Sealink)
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Purpose of Article 102
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the primary purpose of Article 102 is to prevent distortion of competition - and in particular to safeguard the interests of consumers - rather than to protect the position of particular competitors. (Oscar Bronner)
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Market share : dominance
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90% = dominance (Irish Sugar);
75% to 87% over three years = not sufficient (Hoffman - La Roche); 70% to 80% = dominance (Hilti); 63% to 66% over three years = dominance (AKZO); 57% to 65% = dominance (considering competitors' shares) (Michelin); 40% to 45% = dominance (competitors' shares considered) (United Brands); |
