Article 102 TFEU

Article 102 TFEU prohibits the abuse of a dominant market position. According to the Court an undertaking holds a dominant position if it enjoys ‘a position of economic strength [...] which enables it to prevent competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately its consumers’.[1] Usually, the dominance of an undertaking is established according to its market share and barriers to entry. Whilst a market share of more than 50 % in the relevant market normally leads to the presumption of dominance, the undertaking is, nevertheless, not considered dominant if market entry is easy.[2] At the same time, depending on the market, undertakings with lower market shares could also be regarded as dominant. The dominant undertaking is abusing its dominance if its actions are regarded as having an anti-competitive effect[3] which goes beyond the nonexhaustive list of examples in Article 102 TFEU. Whilst dominance as such is not prohibited, the concept of abuse is influenced by the established dominance; a behaviour which is regarded as competitive if conducted by a non-dominant undertaking, can be classified as an abuse if conducted by a dominant one. Unlike under Article 101 TFEU, there are no exemptions for the abuse of a dominant position foreseen in the Treaty.[4] However, as part of the concept of abuse, the Court sometimes assesses inherent objective justifications.[5] The Commission, similarly to its approach under Article 101(1), also recently developed a more economic approach towards Article 102 TFEU which would lead to those exclusionary practices which can be proven to be economically efficient, not being considered as abuse.[6] As under Article 101(1) TFEU, the abuse must have an effect on intra-Union trade.[7]

In the following some examples will be explored. Obviously, these require an HEI to be an undertaking and to be in a dominant position or for a few HEIs to be in a position of collective dominance, which depends on market definition. It is not unimaginable, however, that for subjects which are less common, HEIs do hold a dominant position or that they do so in an area of specialised research.[8] Generally, the strong position of public HEIs, due to their long-term (near) monopoly status in many Member States, makes them susceptible to challenge by private providers entering the market and this might not always be to the advantage of students or in the interest of public research.[9] As will be seen, some behaviour discussed above for Article 101 TFEU, could also fall under Article 102 TFEU if conducted by a dominant undertaking unilaterally rather than by a collusion of undertakings. This might be more detrimental to HEIs, because, as has been mentioned above, there are no exemptions to Article 102 TFEU.

  • [1] 27/76 United Brands (Judgment of 14 February 1978, EU:C:1978:22) para 65.
  • [2] 62/86 Akzo (Judgment of 3 July 1991, EU:C:1991:286) para 60.
  • [3] This question is closely linked to the aims of competition law, a detailed discussion of whichwould go beyond the scope of this book (on the aims of competition law see briefly above textaccompanying n 123 and 124). For more on the concept of abuse see Monti 2007, p. 160 seq;Jung 2009, para 101 seq.
  • [4] Except for SGEIs under Article 106(2) TFEU (see above Sect. 3.2.3).
  • [5] C-95/04 P British Airways (Judgment of 15 March 2007, EU:C:2007:166) para 86. For moresee Monti 2007, p. 162 seq, in particular p. 171 on the British Airways case and p. 203 seq onjustifications. Rousseva and Marquis separate the unwritten justification into objective necessityjustification and an efficiency defence. For the latter they advertise using the same four conditions as under Article 101(3) TFEU (see Sect. 3.3.2 above) and see evidence of the Court following such an approach in C-209/10 Post Danmark (Judgment of 27 March 2012, EU:C:2012:172).See further Rousseva and Marquis 2013, p. 48 seq.
  • [6] See Commission Communication ‘Guidance on the Commission’s enforcement priorities inapplying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’OJ [2009] C 45/02 para 19.
  • [7] See further on Article 102 TFEU Monti 2007, p. 160 seq; Jung 2009; Chalmers et al. 2014,p. 1031 seq. With a focus on HEIs see Amato and Farbmann 2010, p. 9; Greaves and Scicluna2010, p. 15. With a focus on health care provision as a similar area see Wendt and Gideon 2011,p. 270 seq.
  • [8] See Sect. 3.3.1 above.
  • [9] For this argument in a reversed fashion, namely regarding the use of Article 102 TFEU to theadvantage of third sector providers in their relationship towards established NHS (UK NationalHealth Service) providers in health care ‘markets’ see Wendt and Gideon 2011, p. 271.
 
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