Postojanje dominantnog položaja u pravu konkurencije EU

Abstract

Once the market has been defined the power which the undertaking has on the market must be assessed in order to determine whether the undertaking is dominant. If an undertaking has a statutory monopoly over a relevant market, it is in a dominant position. But, in absence of statutory monopoly the European Court of Justice and Commission (ECJ) begin the assessment of market power by looking at market shares. The Court has placed great emphasis on market share. The higher market share the more likely a finding of dominance. For example, in famous case Hoffmann-La Roche the Court held that very large shares are in themselves indicative of dominance unless there are 'exceptional circumstances'. But, it is important to know the minimum market share at which an undertaking is likely to be found to be dominant. The crucial range is 40-50% and the lower the market share of the undertaking the greater the significance which attaches to the other factors indicating dominance. The lowest share at which an undertaking has been found dominant is 39.7% in case Virgin/British Airways. In my opinion, there is over-reliance on this factor and most critics of the present position of EC law (accurately) point to a number of specific problems: a) there is presumption of dominance at 50% of the market, which is too low, b) there is absence of presumption of no dominance, c) market share analysis is static and (subsequently) is not suited for application to dynamically competitive markets, especially information technologies or telecommunication sector. For these reasons, we must emphasise the importance of other factors indicating dominance: a) statutory monopoly, legal regulation and intellectual property rights; b) superior technology and efficiency; c) vertical integration; economies of scale and scope; d) access to financial resources and key inputs; e) advertising, reputation and product differentiation; f) overall size and strength and range of products; g) profits; h) performance indicators; i) conduct of undertakings and so on.