EU antitrust - Article 102 TFEU

Dominance

Article 102 TFEU prohibits undertakings that (individually or collectively) hold a dominant position within the EU or a substantial part of it from abusing their dominance (without objective justification) insofar as it may affect trade between Member States. This provision is mirrored in the national competition laws of EU Member States and which can apply even where an effect on inter-state trade is not established.

The distinction between abusive and legitimate (permissible) conduct by a dominant undertaking may be hard to discern—for example, a price reduction resulting from production efficiencies/economies as opposed to a ‘predatory’ price cut. Dominant undertakings are permitted (and indeed expected) to compete aggressively on a given market but such behaviour should reflect competition ‘on the merits’.

The application of Article 102 TFEU has three constituent elements:

1. •

   establishing ‘dominance’

2. •

   confirming prima facie restrictive unilateral conduct, and

3. •

   assessing whether there is ‘objective justification’ for any such conduct—if not (and only then) can the conduct in question legally be construed as an ‘abuse’

For further information, see Practice Notes: Article 102 TFEU-the prohibition on abuse of dominance and Dominant position