Article 102 TFEU prohibits the abuse of a dominant position. In terms of the types of abusive conduct, the article does not provide an exhaustive list; however it provides some examples of abusive conduct such as; imposing unfair prices, limiting production, applying dissimilar conditions to the parties. Article 102 bears upon the individual behavior of dominant firms, by its nature the application of Article 102 involves a competition authority or a court having to decide whether that behavior deviates from ‘normal’ or ‘fair’ or ‘undistorted’ competition, or form ‘competition on the merits’, none of which expressions free from difficulty.
Whish, Richard; Bailey, David. Competition Law, 8th edition, Oxford University Press, 2015, p. 201, 202. |
The major forms/types of abusive conduct generally falls into three categories which are (i) exclusionary abuses, (ii) exploitative abuses and (iii) discriminatory abuses.
Exclusionary abuses comprise all practices that a dominant undertaking may use to obstruct others, restrict their options, establish entry barriers and therefore remove or weaken the potential competition. Different forms of exclusionary abuses are shortly specified below:
Tying and bundling: A dominant undertaking may try to foreclose its competitors by tying or bundling.
Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, 2009/C 45/02, para. 47, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52009XC0224(01)&from=EN (Last access: 15.02.2017) |
Commission Guidance 2009/C 45/02, op.cit.,para. 48. |
Exclusive dealing: Exclusive dealing can be anticompetitive, provided some conditions are satisfied. It may arise from the contractual obligations that require customers to purchase specific goods or services exclusively from a particular supplier. A dominant undertaking may try to foreclose its competitors by hindering them from selling to customers through use of exclusive purchasing obligations or rebates, together referred to as exclusive dealing.
Commission Guidance 2009/C 45/02, op.cit.,para. 32. |
Exploitative abuse consists in directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions. It is an abusive conduct which exploits customers or suppliers. However, it is a bit challenging to determine when a price is ‘excessive’ and ‘unfair’.
Price discrimination is the major discriminatory abusive conduct. As a means of discriminatory abuse, different consumers are charged different prices for the same product. In other saying, in price discrimination different, prices are collected from the same product or the same price is collected from different products.
Responsible: Freie Universität Berlin, by its President |