European Law Summary
Week VIII
Learning objectives:
Have the knowledge and understanding of art. 102 TFEU.
Be able to apply the relevant legislation and case law on art. 102 to legal questions dealing with abuse
of dominance.
Introduction to art. 102 TFEU – the prohibition on abuse of a dominant position
Art. 102 TFEU, part of EU competition law, prohibits the abuse, not the existence, of market dominance by one
or more undertakings. Unlike art. 101 TFEU (which concerns agreements between companies), art. 102 focuses
of a single firm’s conduct that harms competition or consumers.
Examples of abuse include:
Imposing unfair prices or trading conditions
Limiting production or innovation
Discriminating between trading partners
Forcing unrelated obligations in contracts
STEP 1
Is there an undertaking? (Höfner & Elsner + Ambulanz Glöckner).
STEP 2
Does the undertaking have a dominant position on a given market? (United Brands + Commission notice).
To determine dominance, two steps are taken:
1. Market definition
a. Relevant product market: products/services that consumers see as interchangeable based on
characteristics, price, and use.
i. Use the SSNIP test (Small but Significant and Non-transitory Increase in Price) to see
if consumers would switch to alternatives after a small price rise.
ii. Consider demand and supply substitutability.
b. Relevant geographic market: the area where competition conditions are similar, using the
SSNIP test to see how far consumers would go to find alternatives.
2. Market Power Assessment
a. Market share: a share of 50% or more usually indicates dominance (Akzo).
b. Barriers to entry: high investment or regulation can strengthen dominance.
c. Countervailing buyer power: strong buyers (e.g., supermarkets) can limit a firm’s market
power.
STEP 3
Is this dominant position within the internal market or a substantial part of it?
A substantial part of the internal market can refer to only to geographical size, but also to the economic
importance of the area – such as production and consumption levels, or the habits and opportunities of buyers
and sellers. Even 1 MS of part of it can qualify as a substantial part of the internal market.
STEP 4
Is this dominant position being abused? (Akzo + United Brands).
3 main forms of abuse are:
1. Predatory pricing (Akzo)
a. Prices below average variable cost –> presumed abusive.
b. Prices between average variable cost and average total cost –> abusive if part of a plan to
eliminate competitors.
2. Refusal to supply
Refusal is abusive only if:
a. Access is indispensable
b. Refusal lacks objective justification
Week VIII
Learning objectives:
Have the knowledge and understanding of art. 102 TFEU.
Be able to apply the relevant legislation and case law on art. 102 to legal questions dealing with abuse
of dominance.
Introduction to art. 102 TFEU – the prohibition on abuse of a dominant position
Art. 102 TFEU, part of EU competition law, prohibits the abuse, not the existence, of market dominance by one
or more undertakings. Unlike art. 101 TFEU (which concerns agreements between companies), art. 102 focuses
of a single firm’s conduct that harms competition or consumers.
Examples of abuse include:
Imposing unfair prices or trading conditions
Limiting production or innovation
Discriminating between trading partners
Forcing unrelated obligations in contracts
STEP 1
Is there an undertaking? (Höfner & Elsner + Ambulanz Glöckner).
STEP 2
Does the undertaking have a dominant position on a given market? (United Brands + Commission notice).
To determine dominance, two steps are taken:
1. Market definition
a. Relevant product market: products/services that consumers see as interchangeable based on
characteristics, price, and use.
i. Use the SSNIP test (Small but Significant and Non-transitory Increase in Price) to see
if consumers would switch to alternatives after a small price rise.
ii. Consider demand and supply substitutability.
b. Relevant geographic market: the area where competition conditions are similar, using the
SSNIP test to see how far consumers would go to find alternatives.
2. Market Power Assessment
a. Market share: a share of 50% or more usually indicates dominance (Akzo).
b. Barriers to entry: high investment or regulation can strengthen dominance.
c. Countervailing buyer power: strong buyers (e.g., supermarkets) can limit a firm’s market
power.
STEP 3
Is this dominant position within the internal market or a substantial part of it?
A substantial part of the internal market can refer to only to geographical size, but also to the economic
importance of the area – such as production and consumption levels, or the habits and opportunities of buyers
and sellers. Even 1 MS of part of it can qualify as a substantial part of the internal market.
STEP 4
Is this dominant position being abused? (Akzo + United Brands).
3 main forms of abuse are:
1. Predatory pricing (Akzo)
a. Prices below average variable cost –> presumed abusive.
b. Prices between average variable cost and average total cost –> abusive if part of a plan to
eliminate competitors.
2. Refusal to supply
Refusal is abusive only if:
a. Access is indispensable
b. Refusal lacks objective justification
