Chapter 10 Question
What 3 conditions have to be satisfied for an undertaking to be in breach of Art 102 TFEU?
Briefly explain each condition.
Attempt this question before reading the answer guidance below.
Article 102 TFEU contains three essential elements. There must be:
(1) an undertaking (or undertakings) in a “dominant position”;
The Undertaking definition is essentially the same as for Art 101 TFEU but note the position of connected or groups of companies.
Dominant position is the major aspect of this Article – dominance must be demonstrated in both the product and geographic markets and to a lesser extent the temporal market.
(2) an “abuse” of that “dominant position” by the undertaking;
Provide examples of “abuse”: discriminatory pricing, excessively high prices, predatory prices, tie-in sales, refusal to supply certain customers, and export bans.
(3) the abuse must have the potential to “affect trade between Member States”.
Advise that it is not necessary to establish any specific effects - as long as there was evidence that a particular activity “MAY” affect trade between Member States, i.e. a theoretical potential will be sufficient. It is enough if the abuse has the potential to affect the normal patterns of trade between member states.
The United Brands case (Bananas) is the standout out case for this Article but you should include others such as Continental Can, Hoffman-la-Roche, and Tetra-Pak, which are also informative.