Konkurrensrätt : Innebörden av artikel 82 EGF

Abstract

The competition policy in the EU should guarantee that the competition is not distorted in the way that would prevent or create difficulties for the free mobility of goods and services between Member states. It is prohibited for companies to abuse their dominant position according to Article 82, if it affects trade. The essence of Article 82 is control of market power. The perfect competition results when supply and demand appoint the price and quantity of a product. Firms are encouraged to compete then it results in efficiency, quality products and lower prices. Dominance can be assessed only in relation to three essential variables: the product market, the geographical market and the temporal factor. The determination of the relevant product market is crucial. The general approach of the Commission and the Court to the definition of the product market has been to focus upon interchangeability, the extent to which the product is interchangeable with other products. From the demand side interchangeability requires investigation of cross-elasticities of the product. The existence of high cross-elasticities indicates that the products are part of the same market. There are different types of abuse, for example price discrimination, refusal to supply and predatory pricing. In Tetra Pak the ECJ held that the company that was a world leader in the manufacture of aseptic cartons for liquid and semi-liquid food had abused its dominant position on the market for aseptic cartons. Tetra Pak asserted that only their products could be used in production when using their machines. Their behaviour, according to ECJ, was abusive then they tried to tie-in consumers and customers. This way of behaviour could also be seen in the Hilti-case concerning nail guns. Tying occurs when the supplier makes the sale of one product (the tying product) conditional upon the purchase of another distinct product (the tied product) from the supplier or someone designated by the latter. Tying is common practice that often has no anticompetitive consequences. The foreclosure of the tied market may allow the dominant company to achieve larger profits in the tied market. We can see the importance of case-law, when the definition of Article 82 is broad. For example have the United Brands-case and Akzo-case determined the presumption for market share and dominant position. The case-law will grow larger through the years and we think it will be clearer for companies what is allowed and forbidden. The problem today is that the competition law is rather indistinct