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 Commission has tried to rationalize its assessment and adopted a Notice intended to be used as guidance when applying Article 102 to abusive exclusionary conduct . In this document, the Commission says that in this framework, it will now adopt a fully economic approach, based on the effects of conduct at issue with a view to protect competition - and therefore consumers -, but not competitors. …

Commission Notice on abusive exclusionary conduct

The Commission has tried to rationalize its assessment and adopted a Notice intended to be used as guidance when applying Article 102 to abusive exclusionary conduct . In this document, the Commission says that in this framework, it will now adopt a fully economic approach, based on the effects of conduct at issue with a view to protect competition - and therefore consumers -, but not competitors.

The demarcation line between dominant position and abuse is therefore strongly reduced since, jointly with direct evidence of the exclusionary strategy, factors directly related to dominance, such as the position of the undertaking suspected of dominance, of competitors, of customers or suppliers, barriers to entry and mobility factors, the impact of abuse or performance criteria, are taken into consideration to find the abuse.

The Commission specifies that it will intervene regarding price-based abusive exclusionary conduct only if the conduct in question is such as undermining competition from an operator as efficient as the dominant undertaking . This is the case where an undertaking applies prices below its costs (average variable costs or long-term average incremental costs). 

The dominant undertaking may justify its conduct by demonstrating that it is objectively necessary  or that it produces efficiencies  which outweigh its restrictive effects. 

To demonstrate the reality of efficiencies, the dominant undertaking must establish with a sufficient degree of probability and on the basis of verifiable evidence that four cumulative conditions are fulfilled:

- the efficiencies result from the conduct in question;

- there is no less anti-competitive alternatives to the conduct that are capable of producing the same efficiencies;

- the efficiencies outweigh any negative effects on competition and consumer welfare in the affected markets;

In line with the Communication on abusive exclusionary conduct, the Court of Justice has recently held that a dominant undertaking which provides justification for its abusive conduct must show that the efficiency gains likely to result from it counteract any likely negative effects on competition and consumer welfare in the affected markets, that those gains have been, or are likely to be, brought about as a result of that conduct, that such conduct is necessary for the achievement of those gains in efficiency and that it does not eliminate effective competition, by removing all or most existing sources of actual or potential competition .

Communication from the Commission - Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, No 2009/C 45/02, OJ C 45, 24.2.2009, p. 7-20. See ROUSSEVA, Rethinking Exclusionary Abuses in EU Competition Law, Hart Publishing, 2010.

For an application see C-280/08 P Deutsche Telekom AG,Judgment of 14 October 2010, LawLex201000001302JBJ: in assessing whether the pricing practices of the dominant undertaking could have the effect of removing a competitor from the market in violation of Article 102 TFEU, the as-efficient-competitor test must be used  relying solely on the dominant undertaking's charges and costs, instead of on the particular situation of its actual or potential competitors. The Commission sometimes recognizes that in some circumstances, a less efficient operator may also exercise counterweigh that must be taken into consideration.

The objectively necessary and proportionate character is determined on the basis of factors external to the undertaking: exclusionary conduct may therefore be justified by health or safety reasons. See Commission Guidance of 3 December 2008, No 28.

The French version of the Communication translates “efficiencies” as “gains d'efficacité”, whereas “gains d'efficience” would have been more accurate. Efficiency is measured in terms of the relationship between the results obtained and the resources used; effectiveness is simply a comparison between the results obtained and the objectives set. An effective military strategy is one that achieves victory regardless of the means employed; an efficient military strategy is one that uses as few means as possible.

Case C-209-10 Post Danmark A/S, Judgment of 27 March 2012, LawLex201200000623JBJ; Case C-307-18 Generics (UK) Ltd, GlaxoSmithKline plc, Xellia Pharmaceuticals ApS, Alpharma LLC, formerly Zoetis Products LLC, Actavis UK Ltd, Merck KGaA c. Competition and Markets Authority, Judgment of 30 January 2020, LawLex202000000131JBJ.

European Competition Law

157. Commission Notice on abusive exclusionary conduct

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157. Commission Notice on abusive exclusionary conduct

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise