Abuse of dominance

Definition of abuse of dominance

How is abuse of dominance defined and identified? What conduct is subject to a per se prohibition?

Article 9 of the Competition Act prohibits the abuse of dominance and lists four particular examples of abuse:

  • the direct or indirect determination of unfair sales or purchase prices or other unfair business conditions;
  • limiting production, markets or technical progress to the detriment of consumers;
  • the use of unequal conditions for comparable transactions with other contractors if this places the contractor in a competitive disadvantage; and
  • the requirement to accept additional obligations, which by their nature or according to commercial practices are not related to the subject matter of these contracts.

In principle, the Agency follows the trends of EU competition law, including the effects-based approach; however, the case law suggests that abuse is still often determined by the type of conduct and not by the effects on the market.

Exploitative and exclusionary practices

Does the concept of abuse cover both exploitative and exclusionary practices?

The concept of abuse covers both exploitative practices, such as unfair prices and trading conditions, as well as exclusionary practices, such as predatory pricing, discrimination, refusal to deal and tying.

Link between dominance and abuse

What link must be shown between dominance and abuse? May conduct by a dominant company also be abusive if it occurs on an adjacent market to the dominated market?

While in most cases a causal link between dominance and abuse is established, an abuse may exist even in the absence of the causal link between the dominant position and the inspected conduct. The conduct of a company may also be considered abusive on a market where the company does not have a dominant position.

Defences

What defences may be raised to allegations of abuse of dominance? When exclusionary intent is shown, are defences an option?

The Competition Act prohibits the abuse of a dominant position without exceptions and does not explicitly lay down the basis for efficiency defence. Nevertheless, dominant companies defend themselves by relying on EU case law and stating that their actions were objectively justified. In such cases the Agency assesses whether the companies proved their actions were justified and proportionate to the pursued goal.