A more recent version of these Competition Ii notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL EU Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Rev[Pick the date]
[COMPETITION II - ARTICLE 102 TFEU]
Market dominance - usually single undertakings but can also be joint dominance by different undertakings acting together - either as part of a business entity/corporate group - but sometimes independent - Societa Italiana Vetro - 3 Italian glass manufacturers - breach of 101/102
Often undertaking is dominant and part of cartel - breach of 101/102 - United Brands Co
Several things that the Commission or an NCA must establish - what market the undertaking is operating; that the undertaking is dominant in that market; that the conduct amounts to abuse of that position; that the abuse is capable of affecting trade btw MSs What is the market?: determine exactly what market the undertaking is operating - economic/complex conceptSo long as undertaking can justify behaviour on objective grounds - unlikely to be caughtNotice on the definition of the Relevant Market for the Purpose of Community Competition Law: product and geographic dimension - RPM/RGM - but also 'relevant temporal market' (following United Brands and Euroemballage Corn and Continental Can Co Ltd)
Relevant Product Market (RPM)
Often difficult/highly contentious
Hilti AG v Commission: produced nail guns - company tried to show that RPM for nail guns was the general market of industrial fastners, not just nail guns themselves - if broader RPM accepted then Hilti had small market share: CJ found that nail guns were sufficiently unique/separate - in smaller market they were dominant - narrow definition of market : the smaller the marker the more likely there will be dominance
Interchangeability or product substitution Products will be in same RPM if they could be interchanged with one another/perform similar function
United Brands: question of whether bananas were part of overall fruit market - bananas soft/seedless and so could be eaten by the very old or the sick - so CJ decided it was in a specialised sub-market
Hilti : low cross elasticity of demand so found to be dominant: took in physical characteristics/functions
Demand Substitutability: Whether consumers are willing to buy another product - Notice on the definition of the relevant market -sets out a test - SSNIP: effect of small change in price to demand on demand for alternative Supply substitutability: how easy it is for rival manufacturers to compete: Continental Can: cans for meat and fish and medal lids for jars - supply substitutability was high, reducing RTM - so not dominance - Microsoft - large share of software market and freezing out competitors with media player bundling - low substitutability The Spare parts market
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