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  3. Erasmus Universiteit Rotterdam (EUR)
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  5. European Union Law (RR218)

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Summary European Union Law probleem 2
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  • Course
  • European Union Law (RR218)
  • Institution
  • Erasmus Universiteit Rotterdam (EUR)
  • Book
  • Law of the European Union

Elaboration of learning objectives problem 2 European Union Law Shahid & Said, Cases and Materials European Union Law, Second Edition, Eleven, 2022; R Repasi, EU Law — Treaties and Legislation/European Law — Treaties and Legislation, a bilingual compilation/a bilingual collection, Boom Leg...

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  • Unknown
  • July 28, 2022
  • 2
  • 2021/2022
  • Summary

Subjects

  • second edition
  • eleven
  • boom legal
  • shahid said
  • cases and materials european union law
  • 2022 r repasi
  • eu law — treaties and legislationeuropean law — treaties and legislation
  • a bilingual compilationa bilingual collection
  • 2019 f amtenbrink h

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What are the rules regarding the prohibition of abuse of a dominant position in European
competition law?

ARTICLE 102

Companies may not collude in order to acquire market power that can then be exploited, as can be
deduced from Article 101 TFEU. Article 102 TFEU prohibits the abuse of a dominant position. For
Article 102 TFEU to apply, it will first be necessary to determine whether an undertaking holds a
dominant position. Subsequently, abuse will have to be established.

DETERMINATION OF A DOMINANT POSITION

The determination of a dominant position starts with the definition of the relevant market. A first
indicator of the existence or absence of a dominant position is market share. The rules from the
application practice of competition law are included in the schedule.

It should be noted that the market share is only a first (but often good) indication. The following
additional factors play a role:

- The market share of the next competitors

- The company's financial reserves

- The structure of the undertaking concerned

- The expertise that is present.

It is apparent from the wording of that provision that a dominant position under Article 102 TFEU
may be held by one or more undertakings.

ABUSE OF A DOMINANT POSITION

Article 102 deals with the abuse of a dominant position and has no exceptions. There are 4 criteria:

- One or more companies
- Dominant position on the internal market or a substantial part thereof
- Abuse
- In so far as trade between Member States may be affected.

Dominant position: several factors play a role. The most important is market share. If a company has
more than 75% of the market share, it is dominant. Other factors include the structure of the
company, degree of competition in the relevant market and a company's financial reserves.

Abuse: being in a dominant position is not prohibited. Only if a company abuses it, there is a violation
of Article 102. Article 102 TFEU contains an indicative list of abuses. These can be divided into two
categories: exploitative and utter abuse. Exploitative abuse involves actions aimed at exploiting the
dominant position at the expense of suppliers and/or buyers. Exclusionary abuse consists in a
dominant undertaking trying to eliminate the competition that still exists by, for example, binding its
customers to it. Partly as a result of the list in Article 102 TFEU, a number of forms of abuse will be
discussed below:

- Imposition of unfair prices or contractual conditions
Unfair prices can be too high and too low. In the first case, it is an abuse of exploitation. In
order to prove unfairly high prices, it must be demonstrated that the prices are not in
reasonable proportion to the economic value of the service provided.

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