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Notes from the fourth interactive session in the European Competition law master's subject.
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EUROPEAN COMPETITION LAW –FOURTH INTERACTIVE SESSION 17
NOVEMBER 2020
C. Procedure in 101 and 102 cases + case study: extra information (separate slides)
D. Last week’s self-study questions
1. Is it possible for several undertakings to occupy jointly a dominant position under Article 102
TFEU ?
2. Define concisely the notion of "dominant position".
3. What are the main differences in the application of Articles 101 and 102 TFEU ?
4. What is the SSNIP test ?
5. What is the difference between ‘exploitative abuse’ and ‘exclusionary abuse’ ?
6. What is the ‘essential facilities’ doctrine ?
Answer by one of you: “Markets might contain certain bottlenecks in them such as a method of
supply systems like in Oscar Bronner case. Undertakings that control these bottlenecks or ‘essential
facilities’ might refuse others access to these facilities in order to effectively shut them out of the
market. This might be considered abuse in the sense of 102 TFEU.”
https://www.concurrences.com/en/glossary/essential-facility: “Facility or infrastructure which is
necessary for reaching customers and/or enabling competitors to carry on their business. A facility
is essential if its duplication is impossible or extremely difficult due to physical, geographical, legal
or economic constraints. … Denying access to an essential facility may be considered an abuse of a
dominant position by the entity controlling it, in particular where it prevents competition in a
downstream market.”
7. Under which circumstances does the refusal to license intellectual property rights give rise to an
abuse of dominance ?
Answer by one of you: “The refusal of licensing intellectual property rights might be an abuse when
these I.P. rights are considered to be an essential facility in a certain market. Whenever a
competitor that tries to improve & innovate in a certain product market needs access to certain IP
rights and the dominant competitor refuses to grant them access to their IP, this refusal might be
considered abuse in the sense of 102 TFEU. Look for instance at software products and access to
source code.”
8. What are possible defences against an alleged infringement of Article 102 TFEU ?
9. State accurately the manner in which a relevant market must be determined.
Answer by one of you: “To determine the relevant market you have to look at two things, 1. the
relevant product market and 2. the relevant geographic market.
The relevant product market can be determined 1. when looking at product substitutability on both
the supply and the demand side, and 2. looking at product characteristics. Demand substitutability
can in some situations be determined by the SSNIP test.
, The relevant geographic market consists of by default the territory of the entire European Union,
but might be smaller or bigger based on certain conditions, like transport of a certain product being
hard, or cultural preferences.
Might also need to look at the temporal market which by default is one year but this might be
different for seasonal products.”
10. Can an undertaking be held liable for abuse of a dominant position in a market where it is not
dominant ?
Answer by one of you: “Yes in the case for instance in relative dominance between suppliers and
retail stores. Absolute dominance in a certain market might not be necessary in cases like this.”
Questions
Q: “In the Q&A session we discussed the case study mineral water. We discussed that
it may be possible that there is no abuse, if there was a natural reason for the increase
in pricing. However, in the recorded lecture we said that Abuse in arti cle 102 TFEU is
an objecti ve thing so we never look at intenti on. Where would be that line between
the subjecti ve element in reasoning and the objecti ve behaviour? I am struggling to
see that line in this case. Thank you in advance!”
A: “Excellent question, I already regret that you did not ask it in the group because everyone would
have benefited!
We had several alternatives in parts and the article 101 and impart in the article 102 and the know
infringement option can actually apply to both 101 and 102.
Under Article 101 we have the situation in mineral water where there is no infringements
one price leaders and followers rational parallel behavior.
Or we could have a restrictive agreements, possibly a hardcore agreement, since it concerns
and prices to consumers or we could ever consider practice.
Under 102. It's possible that there is no infringement if there is no dominance or non joint
dominance, or there is dominance, but no abuse. It is possible that there is joined dominance
with an abuse that abuse can be excessive pricing, for example.
The situation that you refer to one price leader and several followers was, in my view, not a one or
two situation, bit was a one on one situation. Even if it were a 102 situation, it would still be
objective, it is not linked to intense however shady that notion of intense may be as I explained to
you last time.
To summarize, we had several alternatives, in part under 101 TFEU and in part under 102 TFEU. The
"no infringement" option can actually relate to both 101 or 102.
Article 101 TFEU
1. No infringement (one price leader, others follow, rational parallel behaviour)
2. Restrictive agreement, possibly hardcore
3. Concerted practice
Article 102 TFEU
1. No infringement (either no dominance, or dominance but no abuse)
2-3. Joint dominance, with (e.g. excessive pricing) or without abuse
4-5. Sole dominance, with or without abuse
[At the end of our discussion, someone raised a 106 issue, a bit far fetched but interesting: in regions
where bottled water is the only alternative, the price increase might endanger the general availability
of a minimum quantity of water to all].
, The situation that you refer to (one price leader, several followers) was in my mind a 101 situation,
not a 102 situation. But even if it were 102, it would still be objectieve, i.e. not linked to intent.
Is this clear? Only say 'yes' if it really is...
2. “How could the essenti al faciliti es doctrine apply (if it can at all) to the refusal of a
dominant undertaking to supply a dataset necessary for the development of a product
(for example a medicinal product in need of research data) or to the business model of
a certain type of market (for example a social network like Facebook)? Could the
criteria laid down in Magill be transposable to these type of cases?
The question is, couldn't you argue that all the data that are in the hands of Facebook, for example,
are on themselves also a essential facility that others should have access to in order to innovate
McGill you get access to the essential facility on condition that you want to do something new. You
want to develop a new product I've told you that Microsoft went in a different direction. Many
people argue that these are essential facilities like all others data sets can be essential cities like all
others. However, what we miss is the Commission ordering access to an entire data set.
3. Q: “In the Google Android case, why was the relevant geographic market of search
engines not a worldwide or EU-wide marlet but rather separate nati onal markets of
each Member States? Would this be because of the specifi c case of the Czech local
search engine?”
You will see that the Commission defines what is it five relevant product markets and then when it
comes to the geographic dimension of these markets its rules that for four of them relevant
geographic markets worldwide and for one of them, the market is purely national. Much more of a
surprise is that the Commission says it is the market for general search it is that markets where they
have super dominance.
it stranger to find that the national that the market, the geographic markets for general search
services. Is that more bizarre as a finding than the finding that the relevant product markets for app
stores should be limited to Android app stores.
A: See p. 88 of the Prohibition Decision:
“423. First, even though general search services can be accessed by users anywhere in the world, the
main general search services offer localised sites in different countries and in a variety of language
versions. For example, Google has national sites for each EEA country and in nearly every official
language of the Union. Moreover, the majority of users make use of the site of their own
country/language when making searches.
424. Second, there are barriers to the extension of search technology beyond national and linguistic
borders. These barriers are one of the reasons why certain smaller general search services in the EEA
use their own search technology mainly for websites from their own country and in their own native
language, while returning the search results of Google or Bing for their websites in other countries or
different languages. Moreover, even for large multinational companies, the costs associated with
upsizing search technology to cover sites in other countries and in different languages can be
prohibitive.”]
4. “According to art. 11(6) 1/2003 Regulati on, EC can take the case of the hands of an
NCA when EU Competi ti on Law is applicable, however when purely nati onal law applies
EC is not eligible to do so. But what happens when EU Competi ti on law is implemented
to nati onal law (copied to nati onal law), will we then say it is a purely nati onal law
case or a case were EU Competi ti on Law applies?”
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