Keywords
Summary

Keywords

1 . COMPETITION - DOMINANT POSITION - THE RELEVANT MARKET - DELIMITATION - CRITERIA

( EEC TREATY , ART . 86 )

2 . COMPETITION - DOMINANT POSITION ON THE MARKET - CONCEPT

( EEC TREATY , ART . 86 )

3 . COMPETITION - DOMINANT POSITION - FACTOR AFFORDING EVIDENCE - MARKET SHARE

( EEC TREATY , ART . 86 )

4 . COMPETITION - DOMINANT POSITION - CRITERIA FOR DETERMINING WHETHER THERE IS A DOMINANT POSITION - PROFITABILITY OF THE UNDERTAKING

( EEC TREATY , ART . 86 )

5 . COMPETITION - DOMINANT POSITION - ABUSE - DISTRIBUTORS FORBIDDEN TO RESELL

( EEC TREATY , ART . 86 )

6 . COMPETITION - DOMINANT POSITION FOR THE PURPOSE OF MARKETING A PRODUCT - REFUSAL TO SELL - CONDITIONS - ABUSE

( EEC TREATY , ARTS . 3 ( 7 ) AND 86 )

7 . COMPETITION - DOMINANT POSITION - ABUSE - ELIMINATION OF A COMPETITOR - WHETHER TRADE BETWEEN MEMBER STATES AFFECTED - TRADE AFFECTED TO A NEGLIGIBLE EXTENT

( EEC TREATY , ART . 86 )

8 . COMPETITION - DOMINANT POSITION - ABUSE - CHARGING DISCRIMINATORY PRICES

( EEC TREATY , ART . 86 )

9 . COMPETITION - DOMINANT POSITION - ABUSE - UNFAIR SELLING PRICES - CONCEPT

( EEC TREATY , ART . 86 )

Summary

1 . THE OPPORTUNITIES FOR COMPETITION UNDER ARTICLE 86 OF THE TREATY MUST BE CONSIDERED HAVING REGARD TO THE PARTICULAR FEATURES OF THE PRODUCT IN QUESTION AND WITH REFERENCE TO A CLEARLY DEFINED GEOGRAPHIC AREA IN WHICH IT IS MARKETED AND WHERE THE CONDITIONS OF COMPETITION ARE SUFFICIENTLY HOMOGENEOUS FOR THE EFFECT OF THE ECONOMIC POWER OF THE UNDERTAKING CONCERNED TO BE ABLE TO BE EVALUATED . FOR THE PRODUCT TO BE REGARDED AS FORMING A MARKET WHICH IS SUFFICIENTLY DIFFERENTIATED FROM OTHER FRUIT MARKETS IT MUST BE POSSIBLE FOR IT TO BE SINGLED OUT BY SUCH SPECIAL FEATURES DISTINGUISHING IT FROM OTHER FRUITS THAT IT IS ONLY TO A LIMITED EXTENT INTERCHANGEABLE WITH THEM AND IS ONLY EXPOSED TO THEIR COMPETITION IN A WAY THAT IS HARDLY PERCEPTIBLE .

2 . THE DOMINANT POSITION REFERRED TO IN ARTICLE 86 RELATES TO A POSITION OF ECONOMIC STRENGTH ENJOYED BY AN UNDERTAKING WHICH ENABLES IT TO PREVENT EFFECTIVE COMPETITION BEING MAINTAINED ON THE RELEVANT MARKET BY GIVING IT THE POWER TO BEHAVE TO AN APPRECIABLE EXTENT INDEPENDENTLY OF ITS COMPETITORS , CUSTOMERS AND ULTIMATELY OF ITS CONSUMERS . IN GENERAL A DOMINANT POSITION DERIVES FROM A COMBINATION OF SEVERAL FACTORS WHICH , TAKEN SEPARATELY , ARE NOT NECESSARILY DETERMINATIVE .

3 . A TRADER CAN ONLY BE IN A DOMINANT POSITION ON THE MARKET FOR A PRODUCT IF HE HAS SUCCEEDED IN WINNING A LARGE PART OF THIS MARKET . HOWEVER AN UNDERTAKING DOES NOT HAVE TO HAVE ELIMINATED ALL OPPORTUNITY FOR COMPETITION IN ORDER TO BE IN A DOMINANT POSITION .

4 . AN UNDERTAKING ' S ECONOMIC STRENGTH IS NOT MEASURED BY ITS PROFITABILITY ; A REDUCED PROFIT MARGIN OR EVEN LOSSES FOR A TIME ARE NOT INCOMPATIBLE WITH A DOMINANT POSITION , JUST AS LARGE PROFITS MAY BE COMPATIBLE WITH A SITUATION WHERE THERE IS EFFECTIVE COMPETITION . THE FACT THAT AN UNDERTAKING ' S PROFITABILITY IS FOR A TIME MODERATE OR NON-EXISTENT MUST BE CONSIDERED IN THE LIGHT OF THE WHOLE OF THAT UNDERTAKING ' S OPERATIONS .

5 . THE FACT THAT AN UNDERTAKING FORBIDS ITS DULY APPOINTED DISTRIBUTORS TO RESELL THE PRODUCT IN QUESTION IN CERTAIN CIRCUMSTANCES IS AN ABUSE OF THE DOMINANT POSITION SINCE IT LIMITS MARKETS TO THE PREJUDICE OF CONSUMERS AND AFFECTS TRADE BETWEEN MEMBER STATES , IN PARTICULAR BY PARTITIONING NATIONAL MARKETS .

6 . AN UNDERTAKING IN A DOMINANT POSITION FOR THE PURPOSE OF MARKETING A PRODUCT - WHICH CASHES IN ON THE REPUTATION OF A BRAND NAME KNOWN TO AND VALUED BY THE CONSUMERS - CANNOT STOP SUPPLYING A LONG- STANDING CUSTOMER WHO ABIDES BY REGULAR COMMERCIAL PRACTICE , IF THE ORDERS PLACED BY THAT CUSTOMER ARE IN NO WAY OUT OF THE ORDINARY . SUCH CONDUCT IS INCONSISTENT WITH THE OBJECTIVES LAID DOWN IN ARTICLE 3 ( F ) OF THE TREATY , WHICH ARE SET OUT IN DETAIL IN ARTICLE 86 , ESPECIALLY IN PARAGRAPHS ( B ) AND ( C ), SINCE THE REFUSAL TO SELL WOULD LIMIT MARKETS TO THE PREJUDICE OF CONSUMERS AND WOULD AMOUNT TO DISCRIMINATION WHICH MIGHT IN THE END ELIMINATE A TRADING PARTY FROM THE RELEVANT MARKET .

7 . IF THE OCCUPIER OF A DOMINANT POSITION , ESTABLISHED IN THE COMMON MARKET , AIMS AT ELIMINATING A COMPETITOR WHO IS ALSO ESTABLISHED IN THE COMMON MARKET , IT IS IMMATERIAL WHETHER THIS BEHAVIOUR RELATES TO TRADE BETWEEN MEMBER STATES ONCE IT HAS BEEN SHOWN THAT SUCH ELIMINATION WILL HAVE REPERCUSSIONS ON THE PATTERNS OF COMPETITION IN THE COMMON MARKET .

8 . THE POLICY OF DIFFERING PRICES ENABLING UBC TO APPLY DISSIMILAR CONDITIONS TO EQUIVALENT TRANSACTIONS WITH OTHER TRADING PARTIES , THEREBY PLACING THEM AT A COMPETITIVE DISADVANTAGE IS AN ABUSE OF A DOMINANT POSITION .

9 . CHARGING A PRICE WHICH IS EXCESSIVE BECAUSE IT HAS NO REASONABLE RELATION TO THE ECONOMIC VALUE OF THE PRODUCT SUPPLIED MAY BE AN ABUSE OF A DOMINANT POSITION WITHIN THE MEANING OF SUBPARAGRAPH ( A ) OF ARTICLE 86 ; THIS EXCESS COULD , INTER ALIA , BE DETERMINED OBJECTIVELY IF IT WERE POSSIBLE FOR IT TO BE CALCULATED BY MAKING A COMPARISON BETWEEN THE SELLING PRICE OF THE PRODUCT IN QUESTION AND ITS COST OF PRODUCTION , WHICH WOULD DISCLOSE THE AMOUNT OF THE PROFIT MARGIN .