Commission’s priorities for assessing abuse of dominant position09/04/09 / cata_european-union-news
The European Commission has issued instructions for enforcement priorities in application of Article 82 of the EC Treaty against abusive exclusionary conduct by dominant undertakings, which discriminate against other competitors on the market (Official Bulletin C 45 dated 24 February 2009). The document should assist companies in anticipating whether the Commission will intervene with regard to their particular conduct.
The Commission emphasizes in these instructions that types of conduct deemed most harmful to consumers shall be focused on. Consumers benefit from competition by lower prices, better quality and a wider choice of new or improved goods and services. Dominant undertakings should not exclude competitors by any means other than competition, by the quality of products or services they produce or provide. It will therefore be crucial for the Commission to protect an effective competitive process rather than simply protecting competitors.
As far as concerns the assessment of the existence of any dominant position and the size of market power, the Commission states that it may conclude an undertaking fails to face sufficient competition pressure even though there is evidence of prevailing potential or actual competition. Such cases shall be deemed to include situations in which a competitor is able to keep on increasing price above the competitive level for a fairly long period of time.
The Commission claims that it has already applied the approach based upon assessment of impacts of exclusionary conduct on the market to several recent cases, such as Wanadoo (IP/03/1025), Microsoft (IP/04/382) or Telefonica (IP/07/1011).