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Abuse of Dominant Position art.102 TFEU - Coggle Diagram

- - - - Market definition is a tool to identify and define the boundaries of competition - makes it possible to calculate market shares to assess whether company is dominant
      - the larger relevant market → the lower chance of dominant position → if no dominant position → conduct does not amount to abuse
      - Defined by Product Market
        Area where neither demand nor supply are substitutable with products from outside
        Method: look at product characteristics (SSNDQ) + price (SSNIP)
        COM focuses more on SSNIP
        +geographic market**
        Area where conditions of competition are ‘sufficiently homogeneous’ for it to be considered in its entirety
        -> entire EU generally
        
        Platform = intermediary operating in two-sided markets, in which they seek to facilitate interactions between different user groups (the ‘sides’ of the market)
        
        Two-sided market = meeting place for two distinct user groups that provide each other with network benefit
        
        Look at Network effect = incremental benefit/loss experienced by an existing user for each new user that joins the network
      - Market Power: defined by market share (indicative but not conclusive!)
        
        +40% held for some time = suggestive of dominance
        
        +50% held for some time = presumption of dominance
        
        +80% (superdominance) = ‘a position of dominance approaching monopoly’
        
        market share compared with that of other market participants
        Countervailing buyer power: some buyers have extra power through market structure or by their identity
        E.g. government, supermarkets
        Barriers to entry (superior tech/ capital strength etc)
    - - Transparent market → members can monitor each other
      - Tacit coordination sustainable over time = incentive for members not to depart from it
      - Foreseeable reaction of current and future competitors, and consumers would not jeopardise expected results
  - - - Objetive concept: intention not relevant
      - Artificial behaviour: cannot be behaviour based on normal market conditions
        
        Exploitation
        Pricing: excessive /discriminatory prices
        Non-pricing: restrictive contract terms/ refuse to supply
        
        Price discrimination: Different prices for the same products or services
        
        Post Danmark I (2012)
        Started luring clients of its rival on the market for the distribution of unaddressed mail with selective price cuts
        
        Exclusion
        Pricing: predatory pricing, rebates, margin squeeze
        Non-pricing: tie-ins, long term contracts, refusal to supply
        
        Predatory pricing: New company enters markets, dominant firm lowers the prices, new firm must adapt and will go insolvent and leave market art.102(a)
        Such prices can drive from the market undertakings which are perhaps as efficient as the dominant undertaking but which, because of their smaller financial resources, are incapable of withstanding the competition waged against them’ (ECJ, Akzo Chemie, 2016)
        
        Margin squeeze: Use created structure to squeeze out the profits of the other used company that is not yours
        
        Rebate:
        quantity rebates e.g. 3+1 discount (presumptively lawful)
        Exclusivity Rebates Discount given only if the buyer agrees to purchase all products from the supplier: presumed abusive
        Loyalty inducing Reward customers for meeting specific targets or thresholds: Assessed on a case-by-case basis
        
        Post Danmark II (2015)
        operated a rebate scheme for direct advertising mail: loyalty inducing rebates
        
        Intel 2009
        granted computer manufacturers rebates which were conditioned on them purchasing all or almost all of their supply needs
        -> object restriction -> abusive
        
        Tie-ins: making the sale of one product (tying product) conditional upon the ‘purchase’ of another distinct product (tied product)
        Microsoft (Case T-201/04):
        Tying product: Windows operating system (in high demanded by customers)
        Tied product: Windows Media Player (WMP is automatically installed alongside Windows
        
        Self preferencing: GoogleShopping (para 163) mentioned practices that are abusive
      - Needs to impact structure of the market