Read the summary and the most important questions on Competition Law | 9780199586554 | Richard Whish; David Bailey

• 5 Article 102

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• What is article 102 concerned with?

  Article 102 is directed towards the unilateral conduct of dominant firms which act in an abusive manner.

• What are the 2 most controversial decisions of the Commission in regard to art. 102?

  The Microsoft case and the Intel case. (both about exclusionary practices)

• Why do people criticize the way the Commission is dealing with cases under art. 102?

  Because in any competition the most efficient of the fittest person will win: this is an inevitable part of the competitive process. This would suggest that, if a firm ends up as a monopolist simply by virtue of its superior efficiency, this should be applauded. 

• What is the Discussion Paper on the application of art. 102 of the Treaty to exclusionary abuses?

  This is a working paper produced by the staff of DG COMP: it is not an official document of the Commission itself, nor was it a set of draft guidelines on the application of art 102.

• What fallowed after the DG COMP's Paper in 2009?

  The Commission published its Guidelines on art. 102  Enforcement priorities. 

• The Guidance does not rewrite the law of art. 102; it does not and cannot bind bind the EU Courts, nor the domestic courts of the Member States. Is it somehow still able to have effect on competition law?

  It is not unreasonable to suppose that competition authorities and courts,  faced with competing arguments as to the proper scope of art. 102, will, at least, be aware of the Commission's approach to certain business behaviour - for example pricing below cost, refusals to supply, the offering of discounts and rebates - and that, over a period of time, the Guidance will have an influence on the future orientation of art 102 in its application to exclusionary behaviour. 

• What is the meaning of the term undertaking in art. 102?

  The term undertaking has the same meaning in art 102 as in art 101: every entity engaged in an economic activity regardless of the legal status of the entity and the way in which it is financed. (Hofner and Elser v Macrotron GmbH) It has also been consistently held that any activity consisting in offering goods and services on a given market is an economic activity. (Pavlov)

• What was held in the Commercial Solvents v. Commission case?

  It was held that the requirement of an effect on trade between Member States would be satisfied where conduct brought about an alternation in the structure of competition in the common market. 

• Describe the two-stage assessment for the finding of dominance

  1) Determine the relevant market.

  2) Determine what is meant by a dominant position. ( This can not be determined purely by reference to an undertaking's market share. Look at the  market position of the dominant undertaking and its competitors, expansion and entry on the relevant market and the buyer power)

• What did the Court of justice say about market shares in the Hoffmann-La Roche v. Commission case?

  .... Furthermore although the importance of the market shares may vary from one market tot another the view may legitimately be taken that very large shares are in themselves, and save in exceptional circumstances, evidence of the existence of a dominant position. An undertaking which has a very large market share and holds it for some time... is by virtue of that share in a position of strength