GENERAL COMPETITION LAW - COMMERCIAL LLM

General Competition Law - Commercial LLM

Table of content

Introduction1

Exclusionary Conduct6

Assessment of Dominance7

“Anticompetitive Foreclosure” Leading to Consumer Harm7

Efficient Competitor Test8

Defenses: Objective Necessity and Efficiencies9

A More Liberal Regime for Dominant Firms10

The U.S. Department of Justice's Report on Single-Firm Conduct: Points of Contrast10

The Application of EC Competition Law to Crisis Cartels Early Plans to Regulate Crisis Cartels14

Crisis Cartels and Article 81(1)15

Crisis Cartels and Article 81(3)18

Conclusion31

Bibliography32

General Competition Law - Commercial LLM

Introduction

The article which contains the EU competition policy towards monopoly is the Article 82 (formerly Article 86). It provides that "any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between member states" . The problem met by the former Article 86, is that it does not define exactly what a "dominant position" is. The previous decisions have indicated that a firm which holds less than 40% of the market share (of the substantial part of the EU) will be not judged as dominant. It is important here to underline the fact that a high market share does not automatically lead to a monopoly power.

It is also important to mention that the dominant position itself is not illegal, only the abuse of dominance is. Moreover no exemption is available for this kind of abuse . The abuse of a dominant position on the ice-cream distribution market provides a good example here. Indeed after a complaint submitted by Mars, the commission found that Unilever had abused its dominant position by offering free freezer cabinets to its Irish distributors on condition that they stocked only Unilever products there. Because the choice for Irish consumers in ice-creams has been restricted, the commission interfered. The Previous Commission's Practice The origins of EU competition policy date back from the 1990s when few member States had developed competition policies . Today the continuing reduction of trade barriers to achieve a Single European Market (SEM) has incited many firms to increase the competitive pressures. Within this new competitive environment firms may have two different behaviours.

Indeed they can take advantage of the opportunities that the internal market offers to them, in this case the benefits of consumers are large. Alternatively, they also may have a defensive approach in order to protect themselves from the growing competition . In adopting this second way firms will act anti-competitively in establishing restrictive agreements or monopolistic practises. In addition, National government plays a crucial role in this policy because they may try to give to the domestic firms subsidies or other form of assistance in order to protect them from this competition. Today this competition policy is sharing with the European Member States under the EC treaty (Articles 81 to 90). The application of the EU competition rules is centralized in the hand of the European Commission. Moreover, requests can be made against its decisions to the European Court of ...