Commercial Law

6. Article 102

Riccardo Ghetti
www.riccardoghetti.it
Article 102

1. Article 102 and the abuse of dominant position

2. Overview
3. Guidance on enforcement priorities
4. Dominant position - actual competitors
- potential competitors
5. Substantial part of market - countervailing buying power
- degree of market power
6. Abuse - preliminary
- purpose
- meaning of abuse
- per se rules
- exploitative abuse
- exclusionary abuse
- single market abuse
1. Article 102

informative, non-prescriptive content

2. Overview

- Microsoft: € 497.2 Million

- Intel: € 1.06 Billion

- Google: € 2.42 Billion

2. Overview

Abuse of
Dominant dominant
position position
2. Overview

“It is in no way the purpose of

article 102 to prevent an
undertaking from acquiring, on
its own merits, the dominant
position on a market …”. [Intel]
2. Overview

Easier to spot than 101?

- No agreement required…

- …just practices
2. Overview

“… nor does [art. 102] seek to

ensure that competitors less
efficient than the undertaking
with the dominant position
should remain on the market”.
[Intel]
2. Overview

Overkill?

No, it is not the role of article

102 to protect less effective
competitors

Because of the «creative distruction»

process characterising market mechanisms
3. Guidance on enforcement

- Not a guidance on the law

- Just enforcement priorities given limited resources

- The law is in TFEU+EU courts precedents

 4. Dominant position

- Position of economic strenght

- Allowing independent behaviour

- Allowing the prevention of

effective competition
(market power comes in degrees: this is substantial)
4.1. Actual competitors

- 102 applicable to statutory monopolies

- Relevance of market shares depends

on market type…
- … and could be below 50%

Market shares do not in themselves determine if

a firm has a dominant position
4.2. Potential competitors

- How likely is it that competing positions take hold?

- IP rights could limit acces to the market, hence

being signs of a dominant position

- Other economic advantages might be

considered barriers to expansion, thus indicating
dominance: also costs and network effects
- Conduct and performance on the market are
two additional element for assesing dominance
4.3. Buyer power

Countervailing buyer power is a

buyer’s ability to switch to
competing suppliers
4.4. What degree of MPower?

- Assessing the elements listed

above …

- … on a case-by-case basis
5. Substantial part of IntMarket

- Not just a matter of physical

size of market
- Each member state could be
a substantial part of EU
- No clear percentage
6.1. Abuse: preliminary

- Dominant firm have a «special

responsibility…

- … not to allow its conduct to

impair undistorted competition»
[Michelin]
6.1. Abuse: preliminary

- There is no exhaustive list of abuses

- False positives and negatives

- Abuse might be single or continuous

6.2. Abuse: purpose

- Protecting competition…

- … thus protecting consumers

6.3. Abuse: meaning

- Using case law

6.4. Abuse: per se rules?

- Meaning: finding a behaviour falling within

article 102 only because it is characterised as
such (non-functional, formalistic approach)

- Not anymore
6.5. Abuse: exploitative

- Exploits customers since it…

- …reduces output and…

- …increases the price

6.6. Abuse: exclusionary

Behaviour preventing the

development of competition
6.7. Abuse: single market

Having an effect on import-

export policies
 Riccardo Ghetti

www.riccardoghetti.it

www.unibo.it