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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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