Seitenhistorie

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In order to be considered leveraging abuse, the conduct of the undertaking with dominant position must satisfy the following criteria:

1.The existence of a separate horizontal or vertical market to which the market power can be transferred.

This condition for the purpose of definition of vertical leveraging was addressed by the Court of Justice in IMS Health v. NDC Health judgment: “it was relevant, in order to assess whether the refusal to grant access to a product or a service indispensable for carrying on a particular business activity was an abuse, to distinguish an upstream market, constituted by the product or service, …, and a (secondary) downstream market, on which the product or service in question is used for the production of another product or the supply of another service ”. 

The Court of First Instance also provided analysis of the conditions that signified that there was a separate horizontal market to which an undertaking concerned was trying to extend its market power in Microsoft v Commission case.

2. Close connection between non-dominated and dominated market.

As was stated by the Court of First Instance in British Airways plc v Commission judgment, “abuse of a dominant position committed on the dominated product market, but the effects of which are felt in a separate market on which the undertaking concerned does not hold a dominant position may fall within Article 82 ECprovided that separate market is sufficiently closely connected to the first”.Although the Court did not provide any unified criterion that could be used to define whether the markets are “sufficiently closely connected” in its decision, the following factors that indicate the presence of necessary link between the markets can be derived from the practice of using this criterion in other cases:

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-the presence of an undertaking and its competitors on both dominated and non-dominated markets.

3. An abusive conduct has to stem from the dominant position of an undertaking.

In the Tetra Pak International SA v Commission judgement,the Court of Justice mentioned that “application of Article 86 presupposes a link between the dominant position and the alleged abusive conduct”. The causation requirement implies that a conduct of the company is caught by Article 102 TFEU only if it was caused by its dominant position on one of the markets. However, leveraging itself can not serve as a ground of abuse and has to be the result of dominant undertaking’s conduct that is considered abusive. 

Robert O’Donoghue and Jorge Padilla distinguish three situations in which the actions of dominant undertaking are likely to be considered a leveraging abuse:

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