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Chapter 7 Consequences Of Infringement Article 102 Notes

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Infringement of Article 102 Market shares as evidence of dominance: decided cases Case Market share Decision Irish Sugar

90%

Dominant position

Hoffman - La Roche

75% - 87% over 3 years

Dominant position

Warner-Lambert/Gillette/BIC

79% by value and 59% by volume in the EU; at least 50% in each member state

Dominant position

Hilti AG

70% - 80%

Dominant position

Trans-Atlantic Conference Agreement

60% (with 70% of the most important segment)

Presumption of a dominant position

AKZO v Commission

63% - 66% over 3 years

Evidence of a dominant position (when the next largest competitors were 14.8% and 6.3%)

Michelin

57% - 65%

Indication of dominance (when competitors' market shares were between 4% and 8%)

United Brands

40% - 45%

Indication of dominance depending on strength of competitors

AKZO v Commission

50%

Presumption of dominance unless exceptional circumstances suggest otherwise.

British Airways v Commission.

39.7%

Market share combined with a number of other factors resulted in finding of dominance.

Goettrup-Klim ea Grovvareforeninger v Dansk Landbrugs Grovvareselskab AMBA

36% and 32%

Market shares could not on their own constitute conclusive evidence of a dominant position.

Market shares as evidence of dominance: general guidelines Market share

Relevance to dominance

>75%, held for 3 years or more.

Strong (possibly conclusive) evidence of dominance. Evidence of rebuttal has to be very powerful. 60% -75%, held for 3 years or more. Prima facie evidence of dominance. Will require modest support from other factors for dominance to be established in the absence of persuasive rebuttal. 50%- 60%. Presumption of dominance where an undertaking has a market share of 50% or above. Undertaking can adduce evidence of other factors to demonstrate it is not dominant.

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40%- 50%.

Supporting evidence of other factors likely to be required before a finding of dominance, and rebuttal may well be possible. The structure of the market as a whole will be very relevant: dominance is more likely if the rest of the market is fragmented/ there may be collective dominance if the market is divided between 2/ more players. Sole dominance is unlikely in the absence of special circumstances, but it cannot be ruled out. British Airways was dominant with a market share in the relevant market of 39.7% only and Commission fined it EUR6.8 million for abusive conduct. The Article 102 Paper creates a "soft safe harbour" for undertakings with a market share of 5 years previously and there has been no repetition of the offence since.

Commission may order to terminate an agreement / to cease and desist from withholding supplies. If necessary, a dominant undertaking may be ordered to adopt positive measures to bring an infringement to an end.

Orders

Regulation 17/62- Commission had no power to order divestment (the forced disposal of all or part of a business in which the party concerned has a high market share). Structural

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