Criteria applied in delimiting practice of dominant position abuse 35
actual economic strength of that company. In order to appreciate whether a
company is in the situation of conducting itself (to a considerable extent)
independently of its competitors, clients and consumers, it is necessary at first to
define the products which, though unlikely to be replaced with other products,
are fairly interchangeable with the products of that company, not only in terms of
the objective characteristics of such products but also in terms of the competition
conditions and offer-and-demand structure on the market6.
On the other hand, jurisprudence has taken into consideration the
consequences (outcomes) of a de facto monopoly on the Community market or
on a part thereof. It was considered that television companies are placed in a
dominant position when, due to a de facto monopoly over information regarding
the registration of their programs (programs received in most families in a
member country or in a substantial part of the number of families from an area
located in the vicinity of a member country), they are in the situation of impeding
the actual competition on the market of the weekly TV program magazines in the
Art. 82 (formerly 86) EC does not define the concept of dominant position,
unlike Art. 66, para. 7 CECO7.
In the United BRANDS case dated February 1, 1978, the Court of Justice
showed “…that the concept of dominant position contemplated by this article
refers to a position of economic power determined by a company which confers
it the discretion to prevent an actual competition from being maintained on that
market, making it possible for such company to conduct itself to a great extent
independently of its competitors, clients and, eventually, its consumers8.
A company is in a dominant position even if it does not hold monopolies and
even if a certain competition subsists on the market. According to the
Community jurisprudence, when the market shares held by the company
amount to 80 per cent or more, it is sufficient to prove the existence of a
dominant position. When the market shares amount to 40-50 per cent or more, it
is a serious indicator of the existence of a dominant position but in order to be
sure of it, other factors shall have to be taken into consideration, such as number
of competitors and the strength thereof. Criteria referring to conduct are used as
a complementary means.
Art. 82 (formerly 86) EC regards the Common Market or an important part
thereof. Even a country with a small area can constitute an important part of the
6 See A se vedea Chalmers, Haddjiemmanuil, Monti., Tomkins, op. cit,, p. 1028.
7 See G. Druesne, Droit Materiel et politiques de la Commmunaute europeene, Publishing house
PUF, Paris, 1991, p. 191.
8 See A. Guedj, Practique du droit de la concurrence national et communautaire, Publishing house
LITEC, Paris, 2000, p. 76.
9 See Fuerea, op. cit, p. 274.