A dominant position is the power to behave to an appreciable extent independently of its competitors, its customers, and consumers
(Hoffmann-La Roche). Article 102 prohibits collective abuse of dominance: by “one or more undertakings”
(Airtours). Mere possession of the required degree of market power is not sufficient. “Abuse” is not defined but various cases exemplify this conduct in particular sets of circumstances: see for example,
(Hoffmann-La Roche; Deutsche Telekom AG, para. 174). Article 102 identifies, non-exhaustively, potential problem conduct in paras. (a)-(d) as: imposing unfair purchase or selling prices or other unfair trading conditions; limiting production or technical development which prejudices customers; discriminatory conditions on trading partners; and imposing obligations which have no connections to the dealings.
A dominant undertaking has a special responsibility in the EU not to allow its behaviour to impair genuine, undistorted competition on the internal market
(Michelin, para. 70). It is not, however, the role of Article 102 to protect less efficient competitors.
- Exclusive dealing agreements: whereby a customer is required to purchase all or most of a particular type of good or service from a dominant supplier and is prevented from buying from others.
- Granting of exclusivity rebates: purported loyalty schemes that are equivalent in effect to exclusive dealing agreements.
- Tying one product to the sale of another: thereby restricting consumer choice.
- Bundling, similar to tying: whereby a supplier will only supply its products in a bundle with one or more other products.
- Margin squeezing: vertical practices which have the effect of excluding downstream competitors.
- Refusing to license intellectual property rights: whereby a dominant firm holding patented rights refuses to license those rights to others.
- Refusing to supply a competitor with a good or service: often in a bid to drive them out of the market.
- Predatory pricing: where a dominant firm deliberately reduces prices to loss-making levels to force competitors out of the market.
- Price discrimination: arbitrarily charging some market participants higher prices that are unconnected to the actual costs of supplying the goods or services.
- leveraging a dominant position by way of self-preferencing: