The term of 'relevant market', as element of dominant position provided by art. 102 of the treaty on the functioning of the European Union

• Author: Cornelia Beatrice Gabriela Ene-Dinu
• Position: Lecturer, PhD, Faculty of Law, University 'Nicolae Titulescu', Bucharest
• Pages: 77-83

LESIJ NO. XXVI, VOL. 1/2019

THE TERM OF “RELEVANT MARKET”, AS ELEMENT OF DOMINANT

POSITION PROVIDED BY ART. 102 OF THE TREATY ON THE FUNCTIONING

OF THE EUROPEAN UNION

Cornelia Beatrice Gabriela ENE-DINU*

Abstract

The term of relevant market was used for the first time in the Sherman Act of 1890, condemning

monopolies or monopoly attempts. The term of r elevant mar ket is a nalyzed as b eing the place where

demand and supply of products or services, interchangeable with each other, are confronting; however,

the termă ofă"relevantă market”ăisă muchămoreă complexăthanăthat,ă beingă characterizedăbyăfundamentală

dimensions in connection with the term of product (service) mar ket an d geographic market, both in

close connection.

Keywords: relevant market, monopolies, product market, geographic market, dominant position.

1. Terminology issues

The term of relevant market was used

for the first time in the Sherman Act of 1890,

condemning monopolies or monopoly

attempts which can lead to higher prices and

lower production than under normal

competition conditions.

Currently, the term of relevant market

is defined by art. 102 TFEU (former art. 82

EC), as a primary source of the European

Union law1, which provides that any abuse

by one or more undertakings of a dominant

position within the internal market or in a

substantial part of it shall be prohibited as

incompatible with the internal market in so

far as it may affect trade between Member

States.

In what concerns the term of

undertakings, we should note that, although

the term is used by art. 101 para. 1 TFEU, a

definition of t he term cannot be found. The

* LОМturОr,ăPСD,ăFaМultвăoПăLaа,ăUnТvОrsТtвă“NТМolaОăTТtulОsМu”,ăBuМСarОstă(О-mail: liadinu78@yahoo.fr).

1 N. Popa coordonator, E. Anghel, C. Ene-DТnu,ăL.ă Sptaru-NОРur,ăTeoriaă Generalăaă Dreptului.ăCaietă deă

Seminar, 3rd edition, C.H. Beck Publishing House, Bucharest, 2017, p. 153.

2 Case C-41/90, HofnerăşiăElser/MacrotonăGmbH (1991) ECR I-1979.

EU courts and authorities in the field o f

competition adopted a broad concept of the

term. In case Hofner, the European Court of

Justice noted that the term of enterprise

covers any entity engaged in an economic

activity, regardless of its legal status and the

way it is financed.2

In essence, art. 102 TFEU concerns the

control of market power by either one

company or a number of companies under

certain conditions. Within this regulation,

not the market power itself is prohibited.

What is condemnable in the TFEU view is

the abuse of po wer in the market, therefore,

the intention of the European lawmaker is to

encourage competition and, in this way, the

most efficient participants break apart from

otСОrsăТnătСОămarkОtăasăaărОsultăoПăМonsumОrs’ă

choices in relation to the goods or services

proposed.

This article aims to analyze the term of

relevant market, as well as the term of