The Abuse of the Dominant Position Within the Internal Market of the European Community: from Theoretical Assumptions to Practice

The competition policy of the European Community does not concentrate on the “market power” of enterprises. Instead of that it uses the terms: “domination of the undertaking in the market” and “the abuse of the dominant position”. There is no doubt that such a position distorts free competition as it limits the freedom of activities of other market participants. Therefore, the art. 82 of the Treaty establishing the European Community (the EC Treaty) predicts that “any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States”. Thus, the prohibition predicted in art. 82 of the EC Treaty is subject to three conditions: the domination of the undertaking in the market, the abuse of this dominant position and its affection on trade between Member States. The aim of the paper is to analyse them in details. However, they are not define in the Treaty or Community legislation. The most important source of information on these conditions can be found in the decisions of the Commission and the judgements of the European Court of Justice and the Court of First Instance. As a result the main method used in preparing the paper is the analysis of the decisions and judgments and the formulation of general conclusions stemming from them. It is expected that this analysis shows what is meant by “the relevant product and geographical market”, what are the indices of the dominant position and when we can talk about its abuse. The presentation of all these factors takes into account the circumstances of concrete cases. In other words, it is not abstract but shows how the art. 82 is used in practice.