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Article 82

If Article 81(old 85) dealt with cartels, article 82 (old 86) deals with monopolies; a rather simplistic encapsulation, but one with an element of truth.
T-68, 77-8/89 Re Italian Flat Glass
Where several undertakings together have a dominant position, then their actions can be in breach of Art. 82. You can thus see that it is not just a true monopoly situation.垄断不单纯表现在单一的企业垄断,很多企业联合一起,形成市场主导地位也是垄断的一种形式
It should be noted that there is no equivalent to Art. 81(3) i.e., no possibility of exemption. There is an absolute abuse, which can not be for the benefit of the consumer, or no abuse at all.

A Dominant Position

In the case we are going to look at in more depth below, United Brands the Court defined a dominant position as “…a position of economic strength enjoyed by an undertaking which enables itto hinder 阻碍the maintenance of effective competition on the relevant market by allowing it to behave to an appreciable extent independently of its competitors and customers and ultimately of consumers.”
a) Defining the relevant market. The most important thing here is to define the relevant market, with reference to both the product and the geographical area. The test is that ofinterchangeability or product substitution. 测验的关键在于产品在相关市场上是否是可替换的

Factors can include
i. Cross elasticity, if the price of one product rises will consumers go for another e.g. lager for beer, frozen vegetables for fresh, margarine for butter. Etc.
ii. Physical characteristics, which are similar, and mean that nothing else, can do. The Commission has published aNotice on the Definition of the Relevant Market (OJ 1997 C372/5) 没有其他人可以做, 其特点区别于其他产品,使得其他产品没有任何比拟性
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997Y1209(01):EN:NOT which summarises the case law and the Commission methodology for determining the relevant market.
One case where the Commission failed to define the relevant product market, and their decision wastherefore quashed was
Europemballage and Continental Can v Commission
The Commission had said that the companies had a dominant position in the market for cans for meat, cans for fish and metal tops, without explaining why these markets were separate from each other, or from the general market in cans and containers. The Court said that it was necessary to identify the ‘characteristics of theproducts in question by virtue of which they are particularly apt to satisfy an inelastic need and are only to a limited extent interchangeable with other products’
In a case, which has to go down as many students favourite in this field, let us look at the banana case, where a relevant market was defined.
27/76 United Brands Company and United Brands Continental BV v Commission
UnitedBrands had been found to have infringed Art 82 (old 86) in that it had required its distributors not to sell bananas while still green, had charged different distributors in different Member States different prices, sometimes by as much as 138% without any justification, and had refused to supply a Danish company because they had advertised another brand. The question was what constituted themarket. United Brand argued that bananas were only part of a larger fresh fruit market, and produced studies to show that cross elasticity between bananas and other fruits was high. The Commission contended it was in fact low, because they had specific qualities which made other fruits unacceptable as substitutes. “For the banana to be regarded as forming a market which is sufficiently differentiatedfrom other fruits it must be possible for it to be singled out by such special features distinguishing it from other fruits that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible”…“The banana has certain characteristics, appearance, taste, softness, seedlessness, easy...
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