European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The abusive exploitation of a dominant position refers to any practice that is likely to adversely affect, by means of resources other than those governing normal competition, an effective competitive structure . If competition on the relevant market is not likely to be restricted , the finding of abuse of a dominant position is, in principle, impossible . 
To be prohibited, a restriction on compe …

Conditions for finding of abuse

The abusive exploitation of a dominant position refers to any practice that is likely to adversely affect, by means of resources other than those governing normal competition, an effective competitive structure . If competition on the relevant market is not likely to be restricted , the finding of abuse of a dominant position is, in principle, impossible . 

To be prohibited, a restriction on competition does not necessarily have to be directly or solely caused by the abusive behavior nor must the practice have caused direct harm to consumers . As soon as an effective competitive structure is undermined, the abuse is constituted, whatever the means employed to this end and regardless of the existence of any causal link between the dominant position and the abuse .

The anticompetitive effect of a practice must exist but the effect does not necessarily have to be concrete, and it is sufficient to demonstrate that there is an anticompetitive effect which may potentially exclude competitors who are at least as efficient as the dominant undertaking . The Commission thus relied on an analysis of probable effects to show the existence of an anticompetitive margin squeeze, finding that the conduct of the undertaking in question had probably reinforced the barriers to entry and expansion on that market and that, in the absence of distortion resulting from the margin squeeze, competition would have been likely to be more lively on the retail market, which would have been of advantage to consumers in terms of price, choice and innovation . That analysis is not required, according to the General Court, in the case of exclusivity rebates which by their very nature are capable of foreclosing competitors and which can be categorized as abusive independently of any analysis of the circumstances of the case aimed at establishing a potential foreclosure effect . In the case of a rebate scheme which did not tie customers by a formal obligation but was loyalty-inducing, it was sufficient that it produced a probable anticompetitive effect on the market, there being no need to show that it is of a serious or appreciable nature . With regard to the abusive practice of “applying dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage”, the Court has specified that if the application of subparagraph (c) of the second paragraph of Article 102 TFEU does not require the fixing of an appreciability (de minimis) threshold, the price discrimination must be likely to create a competitive disadvantage by affecting the interests of the operator which was charged higher tariffs compared with its competitors . From then on, the competitive position of an operator considering itself aggrieved by price differences is not at risk when the impact of this differentiation on its costs or profitability and profits is not significant. 

The Court also indicated that when an undertaking puts forward a counterfactual analysis to contest the Commission's assessment of the potential or actual effects of practices which, taken together, raise competition concerns, whereas this is not the case when they are considered in isolation, the analysis of the effects of these combined practices cannot be carried out by isolating the effects of one practice from those of the other, so that an appropriate counterfactual scenario must make it possible to examine the likely evolution of the market in the absence of these two practices, and not only in the absence of one of them .

The Court of Justice has referred to the cumulative effects theory applicable to cartels when an agreement does not meet the appreciability conditions and found that three Pay for Delay agreements taken together between a manufacturer of originator medicines and its competitors who manufacture generic medicines “generate cumulative effects from parallel restrictive agreements that were liable to strengthen [the former's] dominant position” and to render abusive the contract-oriented strategy implemented by it . 

Bad faith or the deliberate behavior of the undertaking is irrelevant  as there is no requirement of proof of intent to establish the existence of abuse. The existence of any anticompetitive intent constitutes only one of a number of factual circumstances which may be taken into account in order to determine whether a dominant position has been abused . Conversely, the absence of an anti-competitive purpose does not preclude abuse of a dominant position . Similarly, an intention to compete on the merits, even if established, cannot demonstrate the absence of abusive practices . Thus, the fact that a clause is, in substance, objectively justified, on the grounds that it aims to prohibit the display of offensive, dangerous, undesirable or misleading advertising, is irrelevant to the characterization of its anticompetitive effects .

An abuse can also be upheld on a market distinct from the market on which the undertaking is in a dominant position . In this case, there must be a close associative link between the two markets  and a preeminent position on the associated market . However, the mere extension of an undertaking’s dominant position to a  neighboring market cannot in itself constitute proof of conduct that departs from normal competition, even if that extension leads to the disappearance or marginalization of competitors . On the other hand, the fact that an undertaking which holds exclusive rights such as a statutory monopoly uses resources for the purpose of extending the  dominant position which it holds as a result of those exclusive rights on another market, constitutes use of means other than those which come within the scope of competition on the merits, since they are based on the use of resources which are inaccessible, in principle, to a hypothetical competitor that is as efficient, but does not enjoy a  dominant position .

Attempted abuse is prohibited as well as the abuse itself. Where several undertakings in a dominant position try, by their behavior, to oust a competitor, the fact that the desired result is not achieved will not prevent the practice from being characterized as an abuse of a dominant position within the meaning of Article 102 TFEU . However, in some cases the fact that there is no result may establish an absence of abuse. Such is the case where measures aimed at neutralizing potential competition are in the form of inducements facilitating entry to the market as member of a liner conference and not measures aimed at restricting potential competitors' capacity to enter the market . On the other hand, even if it did not succeed in some countries, an overall strategy designed by an undertaking in a dominant position to keep manufacturers of generic products away from the market by acquiring supplementary protection certificates in a manner contrary to the regulatory framework establishing them, constitutes an abuse . 

Does an undertaking in a dominant position on a primary market automatically also have a dominant position on the secondary market? After initially finding that it did , the competition authorities seem to have reverted to a stricter, more economic-based approach. It is no longer sufficient for the producer of a primary product to be the only producer of spare parts of its products for that producer to be declared as holding a dominant position on the secondary market. Actual market power must be demonstrated to characterize a dominant position on that market .

The European authorities have developed the theory of the complex or single and continuous infringement for which it is possible to take account of a number of factual elements without it being necessary to classify or attribute various behaviors separately where they form part of a global plan. The concept of single and continuous infringement applies where a number of actions fall within the framework of a common plan and  pursue a single purpose. For the purposes of characterizing various instances of conduct as a single and continuous infringement, it is necessary to establish whether they complement each other inasmuch as each of them is intended to deal with one or more consequences of the normal pattern of competition and, by interacting, contribute to the realization of the objectives intended within the framework of that overall plan. Can the behavior of a dominant undertaking, in matters of abuse, constitute a single and continuous infringement? The answer must be yes. The concept of single and continuous infringement was first used in the AstraZeneca case , and was enshrined in the Intel case where the defendant was sanctioned for the grant of exclusivity rebates to its customers as part of a single strategy aimed at foreclosing its only significant competitor . An overall strategy can be proved through a body of evidence such as the continuity over time between the respective practices, the comparable nature and complementarity of the practices at issue and the efforts to conceal the anticompetitive nature of the relations with its clients by the informal nature of the agreements concluded.

Lastly, where the abuse concerns a group of undertakings, it is sufficient that one of the companies of the group has implemented it and does not have to have been implemented as a result of a strategy prepared at the management level of the group . The notion of collective dominant position does not, in order to be penalized, require that the undertakings concerned be in a relationship of competition or that the abuse be carried out by all the participants .

Case C-377/20 Servizio Elettrico Nazionale SpA, ENEL SpA and Enel Energia SpA, Judgment of 12 May 2022, LawLex202200002667JBJ: any practice the implementation of which  holds no economic interest for a dominant undertaking, except that of  eliminating competitors so as to enable it subsequently to raise its  prices by taking advantage of its monopolistic position, must be  regarded as a means other than those which come within the scope of  competition on the merits. The same applies to a practice that a  hypothetical competitor – which, although it is as efficient, does not occupy a dominant position on the market in question – is unable to  adopt, because that practice relies on the use of resources or means  inherent to the holding of such a position.

Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex202000000131JBJ: on the contract-oriented strategy of a manufacturer of originator medicines holding a dominant position having concluded several Pay for Delay agreements  with generic competitors, which has the capacity to restrict competition and, in particular, to produce foreclosure effects, exceeding the anticompetitive effects specific to each of the settlement agreements contributing to it.

Case C-48/22 P Google et Alphabet, Judgment of 10 September 2024, LawLex202400006327JBJ.

Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex202000000131JBJ.

Case T-321-05 AstraZeneca AB, Judgment of 1 July 2010, LawLex201000001311JBJ: Court of Justice Upholds First Decision Finding Abuse of Dominant Position in Pharmaceutical Sector..

Case T-712/14 Rolex, Judgment of 23 October 2017, LawLex201700001708JBJ. Where the Commission undertakes an assessment of the conduct of an  undertaking in a dominant position, that assessment being an essential  prerequisite of a finding that there is an abuse of such a position, the  Commission is necessarily required to assess the business strategy  pursued by that undertaking and therefore the existence of any anticompetitive intent may constitute one of a  number of facts which may be taken into account in order to determine  that a dominant position has been abused: see Case T-814/17 Lietuvos geležinkeliai ABV, Judgment of 18 November 2020, LawLex202000003113JBJ.

Case T-301-04 Clearstream Banking AG, Judgment of 9 September 2009, LawLex201000001312JBJ. See already, Case T-65-89 BPB Industries plc, Judgment of 1 April 1993, LawLex200400002901JBJ: the behavior of an undertaking in a dominant position may be considered abusive, within the meaning of Article 102 TFEU, in the absence of any fault.

Case C-549-10 P Tomra, Judgment of 19 avril 2012, LawLex201200000637JBJ.

Case T-334/19 Google et Alphabet, Judgment of 18 September 2024, LawLex202400006536JBJ

Commission Decision No 89/205/EEC of 21 December 1988, Magill TV Guide/ITP, BBC and RTE, LawLex200400002929JBJ; Case T-80/89 BASF and others v Commission [1995] ECR II-729, LawLex200500003998JBJ; Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, LawLex200400002884JBJ; Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, LawLex200400002951JBJ.

Case C-333/94 Tetra Pak v Commission [1996] ECR I-5951, LawLex200400002897JBJ; Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, LawLex200400002884JBJ; Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, LawLex200400002951JBJ; Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, LawLex200400002887JBJ.

See especially Case T-128/98 Aéroports de Paris v Commission [2000] ECR II-3929, LawLex200400002977JBJ; Case T-219/99 British Airways v Commission [2003] ECR II-5917, LawLex200500004555JBJ; Case C-418/01 IMS Health. [2004] ECR I-5039, LawLex200500004507JBJ; Commission Decision No 2004/33/EC of 27 August 2003, GVG/FS, LawLex200500004540JBJ.

Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, LawLex200400002951JBJ; Commission Decision No 92/262/EEC of 1 April 1992, French-West African shipowners' committees, LawLex200400002904JBJ. The fact that the absence of competition or its restriction on the relevant market is brought about or encouraged by provisions laid down by law in no way precludes the application of Article 102 TFEU; Commission Decision No 92/262 of 1 April 1992 French-West African shipowners' committees, LawLex200400002904JBJ.

Case T-612/17 Google Alphabet, Judgment of 10 November 2021, LawLex202100005855JBJ.

On the transfer, for consideration, of certain commercial information concerning its customers in a protected market, to a subsidiary in an unfavorable and therefore discriminatory way in respect of the latter's  competitors on the free market, Case C-377/20 Servizio Elettrico Nazionale SpA, ENEL SpA and Enel Energia SpA, Judgment of 12 May 2022, LawLex202200002667JBJ, adding that that, when an undertaking loses its previous  statutory monopoly on a market, that undertaking must refrain, throughout the entire liberalization of that market, from using means  available to it on account of its former monopoly and which, for that  reason, are not available to its competitors, in order to preserve,  other than on its own merits, a dominant position on the recently liberalized market in question.

An undertaking in a dominant position which, with the sole aim of eliminating its only competitor, exerts pressures in order to enforce an exclusive agreement strengthening its dominant position, commits an abuse, even if the elimination does not, in fact, happen: Commission Decision No 93/82 of 23 December 1992, Cewal, Cowac and Ukwal, LawLex200400003334JBJ, upheld in Cases T-24/93 through T-26/93 and T-28/93 Lopes v Court of Justice [1996] ECR FP-I-A-487, II-1357, LawLex200400002896JBJ; Commission Decision No 37.990 of 13 May 2009, Intel, LawLex201700001159JBJ.

Cases T-191/98, T-212/98, T-214/98 Atlantic Container Line and others v Commission [2003] ECR II-3275, LawLex200500004554JBJ.

Case C-457/10 P AstraZeneca AB [2012], LawLex201200002414JBJ: the fact that some public authorities were not misled or that competitors have obtained, subsequent to the irregular granting of exclusive rights, the cancellation of the latter, is not sufficient to consider that no abuse has been committed insofar as the abusive nature of behavior which objectively restrictive of competition cannot be dependent on the vagaries of the reactions of third parties.

Case 22/78 1 Hugin [1979] ECR p. 1869, LawLex200400002970JBJ, which finds that in the absence of any other supply source, an undertaking is in a dominant position on the market for replacement parts of its own products. 

Case C-56/12 P, European Federation of Ink and Ink Cartridge Manufacturers (EFIM), Judgment of 19 September 2013, not available in English, holding that OEMs ("Original Equipment Manufacturers") of ink cartridges for printers are not in a dominant position on their respective secondary markets where there is intense horizontal competition on the primary market and the primary and secondary markets are closely connected.

Case T-321/05 AstraZeneca AB v Commission [2010], LawLex201000001311JBJ.

Case T-286/09 Intel Corp v Commission, Judgment of 12 June 2014, LawLex201400002078JBJ; Case T-691/14 Sevier, Judgment of 12 December 2018, LawLex201900001337JBJ: the General Court rejected the finding of single and continuous infringement as the Commission failed to draw a distinction, in the context of the single and continuous infringement, between the conduct relating only to the technology market and other conduct founded on the undertaking's dominant position on the finished product market.

Case T-321/05 AstraZeneca AB, cited above.

Case C-377/20 Servizio Elettrico Nazionale SpA, ENEL SpA and Enel Energia SpA, Judgment of 12 May 2022, LawLex202200002667JBJ: the well-being of both intermediary and final  consumers must be regarded as the ultimate objective warranting the  intervention of competition law in order to penalize abuse of a dominant  position within the internal market or a substantial part of that  market. Therefore, an undertaking in such a position may show that an exclusionary practice escapes the  prohibition laid down in Article 102 TFEU by, inter alia, demonstrating  that the effects that could result from the practice at issue are  counterbalanced or even outweighed by advantages in terms of efficiency which also benefit the consumer in terms of, specifically, price, choice, quality or innovation.

Case T-228/97 Irish Sugar v Commission [1999] ECR II-2969, LawLex200400002962JBJ.

Case 6-72 Europemballage Corporation, Judgment of 21 February 1973, LawLex200400002771JBJ: “the problem [...] of the causal link which [...] should exist between the dominant position and its abusive exploitation, is of no interest, since the strengthening of the position held by the undertaking may be abusive and prohibited by Article 82 [102 TFEU] of the Treaty, whatever the means or procedures used to that end, provided that they would have the effects described above [...], i.e. would (leave) only undertakings dependent, in their behavior, on the dominant undertaking”.

Margin squeeze, see Case T-398/07 Spain, Judgment of 29 March 2012, LawLex201200000669JBJ; Case C-549/10 P Tomra Systems ASA, LawLex201200000637JBJ: to establish that a fidelity inducing mechanism violates Article 102 TFUE, there is no need to carry out an analysis of the concrete effects of fidelity rebates on competition insofar as it is sufficient to show that the behavior in question is likely to have such an effect.

Case T- 336/07 Telefónica SA, Judgment of 29 March 2012, LawLex201200001965JBJ.

Case T-286/09 Intel Corp v Commission, Judgment of 12 June 2014, LawLex201400002078JBJ.

Case C-23/14 Post Danmark A/S v Konkurrencerådet, Judgment of 6 October 2015, LawLex201500001215JBJ.

Case C-525/16 MEO - Serviços de Comunicações e Multimédia (SA), Judgment of 19 April 2018, LawLex201800000622JBJ: the concept of “competitive disadvantage” is interpreted to the effect that, where a dominant undertaking applies discriminatory prices to trade partners on the downstream market, it covers a situation in which that behavior is capable of distorting competition between those trade partners, and a finding of such a disadvantage does not require proof of actual quantifiable deterioration in the competitive situation, but must be based on an analysis of all the relevant circumstances of the case leading to the conclusion that that behavior has an effect on the costs, profits or any other relevant interest of one or more of those partners, so that that conduct is such as to affect that situation.

European Competition Law

155. Conditions for finding of abuse

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155. Conditions for finding of abuse

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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