Abuse of dominant position and globalization protection and disclosure of trade secrets and know how

LIDC Contributions on Antitrust Law,
Intellectual Property and Unfair Competition

Pranvera Këllezi
Bruce Kilpatrick
Pierre Kobel Editors

Abuse of Dominant Position
and Globalization &
Protection and Disclosure
of Trade Secrets and KnowHow


LIDC Contributions on Antitrust Law,
Intellectual Property and Unfair
Competition


More information about this series at />

Pranvera Ke¨llezi • Bruce Kilpatrick •
Pierre Kobel
Editors

Abuse of Dominant
Position and Globalization
& Protection and
Disclosure of Trade Secrets
and Know-How

Editors
Pranvera Ke¨llezi
Ke¨llezi Legal
Geneva, Switzerland

Bruce Kilpatrick
Addleshaw Goddard LLP
London, United Kingdom

Pierre Kobel
Kobel Avocat Attorney-at-law
Geneva, Switzerland

ISSN 2199-742X
ISSN 2199-7438 (electronic)
LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition
ISBN 978-3-319-46890-7
ISBN 978-3-319-46891-4 (eBook)
DOI 10.1007/978-3-319-46891-4
Library of Congress Control Number: 2017940466
# Springer International Publishing AG 2017
This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations,
recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission
or information storage and retrieval, electronic adaptation, computer software, or by similar or
dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt
from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this

book are believed to be true and accurate at the date of publication. Neither the publisher nor the
authors or the editors give a warranty, express or implied, with respect to the material contained
herein or for any errors or omissions that may have been made. The publisher remains neutral with
regard to jurisdictional claims in published maps and institutional affiliations.
Printed on acid-free paper
This Springer imprint is published by Springer Nature
The registered company is Springer International Publishing AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland


Preface

The International League of Competition Law (LIDC) carries out a leading study
every year on two topical questions relating to antitrust law, intellectual property or
unfair competition matters. On each question, the key themes in the major
jurisdictions are reflected in a series of national reports, whilst an international
report identifies common features and trends from the national reports and draws
conclusions on potential solutions or ideas to be explored in future. The works of
the LIDC have been a source of practical guidance for generations of lawyers,
whether or not they are members of the LIDC, and for regulatory authorities.
This publication provides unparalleled comparative analysis of two “hot topics”
in the field of antitrust and unfair competition laws.
The first part of the book examines the prohibition of abuse of a dominant
position and globalization in relation to two broad questions: first, whether there
is consistency between the approaches of different jurisdictions to the notion of
abuse, and, second, whether there are too many restrictions on legal rights and
business opportunities resulting from the prohibition of abuse of dominance. The
international report drafted by Professor Pinar Akman reveals that there are as many
similarities as differences between the approaches of the 21 jurisdictions studied
and presented in this book. This is an invitation to read the excellent international

report, as well as the reports on specific jurisdictions to grasp the variety of
arguments and approaches of this antitrust area that looks alike at first sight.
The second part of the book gathers contributions from various jurisdictions on
the question of protection and disclosure of trade-secrets and of know-how. The
need for adequate protection of trade secrets has increased because of digitalization,
and the ease with which large amounts of information can be reproduced as a result
of misappropriation. The comprehensive international report, prepared by Henrik
Bengtsson brings together these reflections by comparing various national
positions. It also considers the practical impact of Directive (EU) 2016/943 of
8 June 2016 (the “Trade Secret Directive”), which was in draft form at the time
the reports were prepared but which has since been finalized. The Trade Secrets
Directive seeks to balance the interests of trade secrets owners and the public, and
together with Article 39(2) of TRIPS, is an important milestone in the process of
unifying the concept and protection of trade secrets.

v


vi

Preface

The editors would like to thank all the authors for their contributions and their
patient collaboration during the editing of this book. They would like to express
their sincere gratitude to the Members of the Bureau, of the Council and of the
Scientific Committee for their kind support and encouragement during the preparation of this book.
Geneva, Switzerland
London, UK
Geneva, Switzerland

Pranvera Ke¨llezi
Bruce Kilpatrick
Pierre Kobel


Contents

Part I

Abuse of Dominant Position and Globalization

1

International Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pınar Akman

3

2

Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gerhard Fussenegger, Florian Schuhmacher, and Rainer Tahedl

27

3

Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pierre M. Sabbadini

45

4

Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Anton Petrov

57

5

France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Mathilde Boudou, Cle´ment Hubert, Thibaut Marcerou, Georges Poulakos,
Michae¨l Vaz d’Almeida, and Martina Isola

6

Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Marco Hartmann-Rüppel

7

Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Takahiko Itoh

8

Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Yvonne Goldammer

9

Moldova . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Alexandr Svetlicinii

10

Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Aleksander Stawicki, Bartosz Turno, and Tomasz Feliszewski

11

Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Manuel Ca~
nadas Bouwen and Julia Suderow

12

Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Trine Osen Bergqvist

vii


viii

Contents

13

Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Denis Cherpillod

14

The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Sarah Beeston and Maria Geilmann

15

Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Nataliia Ivanytska

16

United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Jeremy D.M. Robinson

Part II

Protection and Disclosure of Know-How

17

International Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Henrik Bengtsson

18

Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313

Juliane Messner, Max W. Mosing, and Rainer Schultes

19

Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
Sophie Lens

20

Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Felipe Barros Oquendo

21

Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Teodora Tsenova

22

France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
Nizar Lajnef, Elisabeth Logeais, Vanessa Jime´nez-Serrania,
and Guillaume Couet

23

Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Thomas Hoeren

24

Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
Miklo´s Boronkay

25

Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Anna Gardini

26

Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
Takashi Koyama and Izumi Hayashi

27

Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
Marianne Decker

28

Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
Ca˘ta˘lin Grigorescu and Cristina Mihai


Contents

ix

29

Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
Ana Marı´a Ruiz Martı´n

30

Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Magnus Tonell

31

Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
Charlotte Boulay

32

The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577
Vonne Laan and Mariko Kloppenburg

33

Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595
Anton Polikarpov

34

United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605
Michael Browne

35

United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621
Emilio Varanini


List of Contributors

Pinar Akman University of Leeds, Leeds, UK
Felipe Barros Oquendo Di Blasi Parente & Associados, Rio de Janeiro, Brazil
Sarah Beeston Van Doorne, Amsterdam, The Netherlands
Henrik Bengtsson Advokatfirma Delphi, Stockholm, Sweden
Miklo´s Boronkay Szecskay, Budapest, Hungary
Mathilde Boudou Jean-Claude Coulon & Associe´s, Paris, France
Charlotte Boulay University of Fribourg, Fribourg, Switzerland
University of Paris II Panthe´on-Assas, Paris, France
Aix-Marseille University, Marseille, France
Faculty of Law, University of Neuchaˆtel, Neuchaˆtel, Switzerland
Michael Browne Redd Solicitors LLP, London, UK
~adas Bouwen Callol Coca Asociados, Madrid, Spain
Manuel Can
Denis Cherpillod Reymond & Associe´s, Lausanne, Switzerland
Guillaume Couet AFEC Jeunes, Paris, France
Marianne Decker Decker & Braun, Luxembourg, Luxembourg
Tomasz Feliszewski WKB Wiercin´ski, Kwiecin´ski, Baehr, Warsaw, Poland
Gerhard Fussenegger bpv Hügel Rechtsanwa¨lte OG, Vienna, Austria
Anna Gardini Sena e Tarchini, Milan, Italy
Maria Geilmann Van Doorne, Amsterdam, The Netherlands
Monopolies Commission, Bonn, Germany
Yvonne Goldammer bnt | attorneys-at-law, Vilnius, Lithuania
˘ NICA
˘ , Bucharest, Romania

Ca˘ta˘lin Grigorescu bpv GRIGORESCU ȘTEFA
Marco Hartmann-R€
uppel Taylor Wessing, Hamburg, Germany
xi


xii

List of Contributors

Izumi Hayashi Sakurazaka Law Offices, Tokyo, Japan
Thomas Hoeren Westfa¨lische Wilhelms-Universita¨t, Münster, Germany
Cle´ment Hubert Fieldfisher, Paris, France
Martina Isola Freshfields and AFEC, Paris, France
Takahiko Itoh Anderson Mori & Tomotsune, Tokyo, Japan
Natalia Ivanytska Arzinger Law Office, Kiev, Ukraine
Vanessa Jime´nez-Serrania Universidad de Salamanca, Salamanca, Spain
Mariko Kloppenburg Van Doorne, Amsterdam, The Netherlands
Takashi Koyama Ministry of Foreign Affairs, Tokyo, Japan
Vonne Laan Van Doorne, Amsterdam, The Netherlands
Nizar Lajnef UGGC Avocats, Paris, France
Elisabeth Logeais UGGC Avocats, Paris, France
Sophie Lens Altius, Brussels, Belgium
Thibaut Marcerou PDGB avocats, Paris, France
˘ NICA
˘ , Bucharest, Romania
Cristina Mihai bpv GRIGORESCU ȘTEFA
Juliane Messner Geistwert, Vienna, Austria
Max W. Mosing Geistwert, Vienna, Austria
Trine Osen Bergqvist Swedish Competition Authority, Stockholm, Sweden

Anton Petrov Djingov, Gouginski, Kyutchukov & Velichkov, Sofia, Bulgaria
Anton Polikarpov Arzinger Law Office, Kyiv, Ukraine
Georges Poulakos CMS Bureau Francis Lefevre, Paris, France
Jeremy D.M. Robinson Watson Farley & Williams LLP, London, UK
Ana Marı´a Ruiz Martı´n Complutense University of Madrid, Madrid, Spain
Pierre M. Sabbadini Brussels Bar, Brussels, Belgium
Florian Schuhmacher Vienna University of Economics and Business; DLA
Piper, Vienna, Austria
Rainer Schultes Geistwert, Vienna, Austria
Aleksander Stawicki WKB Wiercin´ski, Kwiecin´ski, Baehr, Warsaw, Poland
Julia Suderow Suderow Abogados, Bilbao, Spain
Alexandr Svetlicinii University of Macau, Faculty of Law, Macao SAR, China


List of Contributors

xiii

Rainer Tahedl Austrian Protective Association Against Unfair Competition,
Vienna, Austria
Magnus Tonell ADN Law Advokatfirma KB, Stockholm, Sweden
Teodora Tsenova Institute of Private International Law, Sofia, Bulgaria
Bartosz Turno WKB Wiercin´ski, Kwiecin´ski, Baehr, Warsaw, Poland
Emilio Varanini California Office of the Attorney General, San Francisco, CA, USA
Michae¨l Vaz d’Almeida UGGC Avocats, Paris, France


Abbreviations

AUD

Berne Convention
BGBl.
BGH
BGN
B2B
B2C
Bn
BRL
c./ca.
cf.
CFI
CFREU
CHF
CJEU
CMLR
CRn
De minimis Notice

Directive 97/7

Australian dollar
The Berne Convention for the Protection of Literary
and Artistic Works of 9 September 1886, as amended
Bundesgesetzblatt (Germany)
Bundesgerichtshof (Germany)
Bulgarian lev
Business to business
Business to consumers
Billion
Brazilian Real (reais)

Circa
Compare
Court of First Instance of the ECJ (before 1 December
2009)
The Charter of Fundamental Rights of the European
Union, OJ 2010 C 83, p. 389
Swiss franc
Court of Justice of the European Union (after 1 December
2009)
Common Market Law Review
Concentration Ratio measuring the percentage market
share held by n largest undertakings
Commission Notice on agreements of minor importance
which do not appreciably restrict competition under
Article 81(1) of the Treaty establishing the European
Community (de minimis), OJ 2001 C 368, p. 13
Directive 97/7/EC of the European Parliament and of
the Council of 20 May 1997 on the protection of
consumers in respect of distance contracts, OJ 1997 L
144, p. 19

xv


xvi

Directive 2000/31

Directive 2011/7

Directive 2004/48

DKK
DM
e.g. or eg
EC
ECHR
ECJ
ECR
ECtHR
EU
ff
GBP
GC
GDP
Guidelines on the effect
on trade concept
ha
HADOPI
HRK
HMT
HUF
i.e.
Id./Idem
IP
m
m2
min
MFN
NAAT-rule

Notice on the
relevant market

Abbreviations

Directive 2000/31/EC of the European Parliament and
of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic
commerce, in the Internal Market (’Directive on electronic commerce’), OJ 2000 L 178, p. 1.
Directive 2011/7/EU of the European Parliament and of
the Council of 16 February 2011 on combating late
payment in commercial transactions, OJ 2011 L 48, p. 1
Directive 2004/48 of the European Parliament and of
the Council of 29 April 2004 on the enforcement of
intellectual property rights, OJ 2004, L 157, p. 45
Danish krone
Deutsche mark
for example
European Community
Council of Europe, European Convention for Human
Rights of 4 November 1950
European Court of Justice (before 1 December 2009)
European Court Reports
European Court of Human Rights
European Union
and following
Pound sterling (UK)
General Court of the CJEU (after 1 December 2009)
Gross Domestic Product
Commission Notice - Guidelines on the effect on trade

concept contained in Articles 81 and 82 of the Treaty,
OJ 2004 C 101, p. 81
Hectare
Haute Autorite´ pour la diffusion des œuvres et la protection des droits sur Internet, France
Croatian Kuna (hrvatska kuna)
Hypothetical monopolist test
Hungarian Forint (Magyar forint)
id est (that is)
The same as previously mentioned
Intellectual property
Million
Square metre
Minutes
Most Favoured Nation
The non-appreciable affectation of trade rule
Commission Notice on the definition of relevant market
for the purposes of Community competition law, OJ
1997 C 372, p. 5


Abbreviations

OECD
OJ
p./pp.
para/paras
Paris Convention
pt
kg
R&D

Regulation 1/2003

Regulation 139/2004

Regulation 316/2014

Regulation 330/2010

Regulation 2659/2000

Regulation 1400/2002

Rome Convention

RON
SEK
SMEs
SMP
Software Directive

xvii

Organisation for Economic Co-operation and
Development
Official Journal
Page(s)
Paragraph(s)
Paris Convention for the protection of industrial property of 20 March 1883
Point
Kilogram

Research and development
Council Regulation 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in
Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1
Council Regulation 139/2004 of 20 January 2004 on the
control of concentrations between undertakings, OJ
2004 L 24, p. 1
Commission Regulation 316/2014 of 21 March 2014 on
the application of Article 101(3) of the Treaty on the
Functioning of the European Union to categories of
technology transfer agreements, OJ 2014 L 93, p. 17
Commission Regulation 330/2010 of 20 April 2010 on
the application of Article 101(3) of the Treaty on the
Functioning of the European Union to categories of
vertical agreements and concerted practices, OJ 2010
L 102, p. 1
Commission Regulation 2659/2000 of 29 November
2000 on the application of Article 81(3) of the Treaty
to categories of research and development agreements,
OJ 2000 L 304, p. 7
Commission Regulation 1400/2002 of 31 July 2002 on
the application of Article 81(3) of the Treaty to
categories of vertical agreements and concerted
practices in the motor vehicle sector, OJ 2002 L
203, p. 30
International Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting
Organizations, done at Rome on October 26, 1961
Romanian leu
Swedish Krona

Small and medium size enterprises
Significant market power
Directive 2009/24 of the European Parliament and of
the Council of 23 April 2009 on the legal protection of
computer programs, OJ 2009 L 111p. 16


xviii

SSNIP
TEC
TFEU
TRIPs

UAH
UK
US/USA
v
WCT/WIPO Copyright
Treaty

Abbreviations

Small but Significant and Non-transitory Increase in
Price
Treaty Establishing the European Community
Treaty on the Functioning of the European Union
Agreement on Trade-Related Aspects of Intellectual
Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization,
signed in Marrakesh, Morocco on 15 April 1994

Ukrainian hryvnia
United Kingdom
United States of America
Versus
World Intellectual Property Organization Copyright
Treaty, 1996


Part I
Abuse of Dominant Position and Globalization


1

International Report
Pınar Akman

1.1

Introduction

This International Report aims to summarise and synthesise the responses received
from the national LIDC groups in 21 jurisdictions.1 The national reports were
prepared in response to a questionnaire prepared by the author of this International
Report. The questionnaire sought to illicit views on abuse of a dominant position
and globalisation in relation to two broad questions: first, whether there is consistency between the approaches of different jurisdictions to the notion of abuse and,
second, whether there are too many restrictions on legal rights and business
opportunities resulting from the prohibition of abuse of dominance. Given that
not every jurisdiction that takes part in the LIDC and that has responded to the
questionnaire adopts the terminology of abuse of a dominant position, the aim of the

exercise is better expressed as the comparison of the different provisions and the
different approaches to the issue of the anticompetitive exercise of unilateral market
power. For ease of narrative, the concept of ‘abuse of a dominant position’ will be

1

The following national groups submitted reports on the topic: Austria (G. Fussenegger,
F. Schuhmacher and R. Tahedl); Belgium (P.M. Sabbadini); Brazil (M. Pallerosi); Bulgaria
(A. Petrov); France (M. Boudou, C. Hubert, M. Isola, T. Marcerou, G. Poulakos, M. Vaz
d’Ameida); Germany (M. Hartmann-Rüppel); Hong Kong (K. Fournier); Hungary (A. Papp);
Italy (A. Camusso and C. De Cesero); Japan (T. Itoh); Lithuania (Y. Goldammer); Moldova
(A. Svetlicinii); Netherlands (S. Beeston and M. Geilmann); Norway (J.C. Kongsli); Poland
(A. Stawicki, B. Turno and T. Feliszewski); Spain (M. Ca~nadas Bouwen and J. Suderow); Sweden
(T.O. Bergqvist); Switzerland (D. Cherpillod); Ukraine (N. Ivanytska); United Kingdom
(J.D.M. Robinson); United States (D.I. Baker, K. Mereand-Sinha and M. Ferrari).
P. Akman (*)
University of Leeds, Leeds, UK
e-mail:
# Springer International Publishing AG 2017
P. Ke¨llezi et al. (eds.), Abuse of Dominant Position and Globalization & Protection and
Disclosure of Trade Secrets and Know-How, LIDC Contributions on Antitrust Law,
Intellectual Property and Unfair Competition, DOI 10.1007/978-3-319-46891-4_1

3


4

P. Akman

used to refer to such provisions even if they are not expressed in terms of abuse of a
dominant position but in terms of monopolisation and similar concepts.
The prohibition of abuse of a dominant position is one of the core legal
provisions in any modern competition law system. It makes up one of the three
pillars of competition law alongside the prohibition of anticompetitive agreements
(such as cartels) and merger control. The prohibition of abuse of dominance is a
controversial aspect of competition law since there is no apparent consensus across
different prohibitions and different approaches of different jurisdictions such as the
European Union and the United States of America. There are also no clear, general
economic rules establishing when the exercise of unilateral market power is
anticompetitive. The European Commission has, for example, been criticised for
adopting a formalistic approach rather than an economic effects-based approach in
the application of Article 102 TFEU.2 This is to be contrasted most significantly
with the US approach where the antitrust laws are deemed to be ‘for the benefit of
competition, not competitors’.3 The Commission has recently sought to modernise
its approach by, inter alia, adopting a Guidance document on its enforcement
priorities in applying Article 102 TFEU to exclusionary conduct arguably to
bring its approach more in line with modern economics.4
Commentators are also divided on the issue, and particularly in the EU, some
commentators have argued that a more economic approach is not appropriate and/or
not justified.5 One of the main aims of this International Report is therefore to
establish whether there is consistency between the applications of the rules
concerning abuse of dominance in different jurisdictions around the globe. A related
aim is to determine whether the existing approaches are too restrictive of business
rights and opportunities of the dominant undertakings since, for example, one of the
major criticisms against the application of Article 102 TFEU by the European
Commission has been that it seeks to ‘protect competitors, not competition’.

2

For the criticisms, see eg E.M. Fox, ‘Monopolization and Dominance in the United States and the
European Community: Efficiency, Opportunity, and Fairness’ (1986) 61 Notre Dame Law Review
981, 1004; P. Jebsen and R. Stevens, ‘Assumptions, Goals and Dominant Undertakings: The
Regulation of Competition Under Article 86 of the European Union’ (1996) 64 Antitrust Law
Journal 443; B. Sher, ‘The Last of Steam-Powered Trains: Modernising Article 82’ (2004)
25 (5) ECLR 243; J. Kallaugher and B. Sher, ‘Rebates Revisited: Anti-Competitive Effects and
Exclusionary Abuse under Article 82’ (2004) 25 (5) ECLR 263; D. Waelbroeck, ‘Michelin II: A
Per Se Rule Against Rebates by Dominant Companies?’ (2005) 1 (1) Journal of Competition Law
and Economics 149; A. Jones and B. Sufrin, EU Competition Law (Oxford University Press, 4th ed,
2011) 281; R. O’Donoghue and J Padilla The Law and Economics of Article 102 TFEU (Hart
Publishing, 2nd ed, 2013) 67 et seq.
3
Ball Mem’l Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1338 (7th Cir. 1986)
(Easterbrook, J.) cited in Baker et al., US, p. 7.
4
See ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC
Treaty to abusive exclusionary conduct by dominant undertakings’, OJ 2009 C45, p. 7.
5
See eg H. Schweitzer, ‘Recent developments in EU competition law (2006-2008): Single-firm
dominance and the interpretation of Article 82’ (2009) (2) European Review of Contract Law
175, 184.


1

International Report

5

A related criticism has been that efficiencies and other pro-competitive effects of

dominant undertakings’ practices are not duly taken into consideration by the
European Commission, thereby potentially discouraging investment and innovation
that would otherwise produce such efficiencies and other pro-competitive effects.6
In general, the European approach can be contrasted with the US approach, which is
less restrictive of the business rights and opportunities of dominant undertakings due
to the focus of the latter on the effects of a given conduct on competition and
efficiency rather than on the competitors of the perpetrator.
From a study of the national reports that were submitted to the International
Reporter, it is apparent that some jurisdictions have per se or formal approaches,
whereas some claim to adopt an effects-based approach to the prohibition of
unilateral conduct. Similarly, a number of jurisdictions claim to pursue objectives
such as consumer welfare, whereas others also have objectives that could lead to the
protection of competitors as such. Although broadly speaking many jurisdictions
have very similar provisions to Article 102 TFEU, much legislation also has small
but important differences in the list of prohibited practices even when they are
explicitly based on the example of Article 102 TFEU. Most notably, in the list of
prohibited practices, several jurisdictions have separate clauses on refusal to deal
and some have a separate clause explicitly prohibiting exclusion or predatory
pricing. A couple of jurisdictions (for example, Germany and France) have specific
rules concerning the prohibition of abuse of economic dependency, which does not
require the existence of dominance, and go over and beyond the prohibition found
in Article 102 TFEU in terms of the strictness of the rule.
Interestingly, many jurisdictions provide definitions of ‘dominant position’, and
some provide explanations of ‘abuse’ in their legislation unlike the EU or the US. In
the same vein, many jurisdictions consider the effect of abuse on a contract to be
nullity and voidness, although this is not always explicitly regulated in the relevant
provisions and is not regulated in Article 102 TFEU or in Sherman Act Section 2 on
monopolisation. Unlike the EU or US prohibition, as well as some national
provisions, some jurisdictions also do not require any effect on trade within their
jurisdiction that would result from the abuse of dominance as part of the prohibition.

In terms of the question of whether there are too many restrictions on business
rights and opportunities, it is not possible to discern a clear position from the
national reports that there are too many restrictions on businesses. Most
jurisdictions seem to rather complain that there are too few cases concerning
anticompetitive unilateral conduct, and therefore there is too little guidance for
businesses. Because they suggest that there are too few cases, there is no suggestion
that there are too many restrictions but, if anything, possibly that there is little
control over dominant undertakings’ conduct. The one jurisdiction that expressly

6
See eg J. Killick and A. Komninos ‘Schizophrenia in the Commission’s Article 82 Guidance
Paper: Formalism Alongside Increased Recourse to Economic Analysis’ (2009) (February-I)
Global Competition Policy; Y. Katsoulacos, ‘Some Critical Comments on the Commission’s
Guidance Paper on Art. 82 EC’ (2009) (February-I) Global Competition Policy.


6

P. Akman

indicates a concern that over-enforcement of anti-monopoly rules would deter
innovation and investment in dynamic markets that are so important to the economy
is the United States.7 The US has far fewer restrictions on business rights and
opportunities for dominant undertakings as a result of adopting a narrower approach
to defining dominance, enforcement caution by agencies and a higher bar for
private monopolisation and abuse suits in comparison to many other jurisdictions
around the globe.8 This position adopted in the US leads to the main point of
divergence concerning the prohibition of anticompetitive unilateral conduct across
different jurisdictions. Such divergence has serious practical implications since
both the undertakings and the enforcers of competition law operate in a global

economy and the divergence risks creating a situation where the same
undertaking’s same conduct will be prohibited in one jurisdiction in the world
and allowed (or even encouraged) in another jurisdiction.9
In the following, this report first provides a brief overview of the different
prohibitions of abuse of a dominant position across the different jurisdictions
studied in Sect. 1.2. It then shifts the focus to the different aspects of conduct
prohibited as an abuse of a dominant position in Sect. 1.3. Section 1.4 considers the
enforcement of the prohibition by competition authorities and courts, before Sect.
1.5 concludes with some observations.

1.2

The Different Prohibitions of Abuse of a Dominant
Position

The oldest prohibition of anticompetitive unilateral conduct in the national reports
submitted is the US Sherman Act of 1890. For most of the rest of the different
jurisdictions studied, the majority of which are EU Member States, adoption of
competition law seems to follow the EU model and many—if not most—of them
have adopted competition legislation when they were candidates for EU membership.10 In contrast, in Germany, the first competition rule concerning unilateral
conduct dates back to the Regulation against the Abuse of Economic Dominant
Positions from 1923.11 In Japan, the prohibition of private monopolisation

7

Baker et al. US, p. 1.
Baker et al., US, p. 2. Indeed, it is pointed out that it might be lack of competition intervention that
might restrict the business opportunities of undertakings other than the dominant undertaking; see
Baker et al., US, p. 3.
9

Baker et al., US, p. 2.
10
Beeston and Geilmann, Netherlands, p. 2; Camusso and De Cesero, Italy, p. 2; Sabbadini,
Belgium, p. 4; Papp, Hungary, p. 4; Goldammer, Lithuania, p. 1; Stawickiet al., Poland, p. 1;
Boudou et al., France, p. 3; Ca~nadas Bouwen and Suderow, Spain, p. 3; Robinson, UK, p. 6;
Fussenegger et al., Austria, p. 3.
11
Hartmann-Rüppel, Germany, p. 4.
8


1

International Report

7

modelled after the US Sherman Act existed since 1947.12 In Brazil, the first
prohibition of anticompetitive conduct can be found in a Decree from 1945.13
In almost all of jurisdictions covered by this report, the rules concerning competition are found in statutes that exclusively concern competition law, or if they are
broader, they concern competition and fair trade/fair competition/consumer protection.14 In contrast, in two jurisdictions (France and Belgium), the competition rules are
found in a more general statute, eg in a general commercial or economic code.
Interestingly, several statutes contain a definition and sometimes a presumption of
dominance. For example, the German provisions set out a definition of dominance, as
well as the criteria to be considered and the presumptions in analysing market power.15
The provision also contains a presumption of dominance for undertakings holding a
market share of at least 40%.16 Similarly, the Austrian legislation provides a definition
of dominance and a presumption of dominance at 30% market share alongside a
reversal of burden of proof: the undertaking has to prove that it is not dominant if it has
market share of 30% and above.17 A legislative definition of dominance is also

provided in Switzerland; Lithuania, with a presumption of dominance at 40% market
share; Belgium; Bulgaria; the Netherlands; Ukraine, with a presumption of dominance
at 35% market share (although dominance at lower market share is stated to be
possible in the Act) and a reversal of burden of proof similar to Austria; and Moldova,
with a presumption of dominance at 50% market share.18
An interesting case is that of Brazil, where dominating a market in itself appears to
be prohibited except when such dominance results from a natural process caused by
the greater efficiencies of the undertaking compared with its rivals and where there is a
presumption of dominance at 20% market share.19 It should be noted that there is no
definition of dominance in the Brazilian legislation. Another striking example is
Japan, where the prohibition of anticompetitive unilateral conduct (ie, private
monopolisation) does not require the existence of a dominant undertaking or an
undertaking with substantial market power. What is required is instead the causing
of a ‘substantial restraint of competition in any particular field of trade’ that is contrary
to public interest.20
12

Itoh, Japan, p. 1.
Pallerosi, Brazil, p. 4.
14
These jurisdictions include Italy; Ukraine; Poland; Bulgaria; Japan; United Kingdom; Austria;
Germany; Hungary; Switzerland; Lithuania; Spain; Brazil; Netherlands; Norway; Ukraine;
Sweden; Moldova; Hong Kong (due to enter into force in December 2015).
15
Hartmann-Rüppel, Germany, pp. 1-2.
16
See Act against Restraints of Competition Section 18 (4) cited in Hartmann-Rüppel,
Germany, p. 2.
17
Fussenegger et al., Austria, pp. 9-10.

18
Cherpillod, Switzerland, p. 2; Goldammer, Lithuania, pp. 2-3; Sabbadini, Belgium, p. 3; Petrov,
Bulgaria, p. 2; Beeston and Geilmann, Netherlands, p. 2; Ivanytska, Ukraine, p. 4; Svetlicinii,
Moldova, pp. 4-5.
19
Pallerosi, Brazil, p. 1.
20
Itoh, Japan, p. 1.
13


8

P. Akman

In the jurisdictions where a definition of dominance has been provided, it is
striking that many of them have adopted the definition of dominance provided by
the CJEU in its case law (most notably, in Hoffmann-La Roche), which included
notions of economic strength that allows the undertaking to prevent effective
competition and the possibility of acting independently of competitors and
consumers.21 For example, the legislative definitions of dominance in the Republic
of Moldova, the Netherlands, Bulgaria, Belgium and Switzerland have either
adopted the definition of dominance from the CJEU case law in its entirety or
adopted significant elements of that definition.
The market share thresholds and presumptions in domestic competition laws are
to be contrasted with the case of the US, where monopoly power is unlikely to be
established at a market share lower than around 70%.22 It is also noteworthy that
many European jurisdictions have opted for a presumption of dominance at lower
market share thresholds than that adopted in the CJEU case law, which is that of
50%.23 It is similarly striking that in one of the jurisdictions studied, namely Hong

Kong, the Competition Ordinance due to come in effect in December 2015, adopts a
lower substantive threshold (despite generally following the EU model) by
replacing the concept of ‘dominance’ with that of ‘substantial degree of market
power’ as more suited to the reality of the country’s business world.24
The foregoing clearly demonstrates that one of the points on which different
jurisdictions diverge in their approach to abuse of dominance considers the issue of
dominance. The same undertaking is likely to be presumed dominant in some
jurisdictions with a burden to rebut that presumption, whereas it is not likely to
be presumed dominant in some other jurisdictions and be presumed dominant in yet
some other jurisdictions with no duty to rebut the presumption. In a global context
where the undertakings and their operations are global, it would be desirable to base
presumptions of dominance on the same market share threshold or abandon the
market share threshold altogether: modern economics, as well as competition
policy practice, suggests that market shares only provide a first indication of
‘market power’.25 Subsequently, what should be placed in the centre of the assessment is ‘market power’—namely, the ability to profitably raise price or reduce
output—rather than ‘market shares’ as such.26

21

See Case 85/76 Hoffmann-La Roche & Co AG v EC Commission, ECR 1979 461, para. 38.
See eg United States v Aluminium Co of America, 148 F.2d 416, 424 (2d Cir 1945).
23
See Case C-62/86 AKZO Chemie BV v Commission, ECR 1991 I-3359, para. 60.
24
This wording is more akin to the Australian provision; Fournier, Hong Kong, pp. 16-17.
25
See eg Commission Guidance, para.13.
26
For the definition of market power, see eg Commission Guidance, para. 11.
22

1

International Report

1.3

9

Conduct Prohibited as Abuse of a Dominant Position

Most provisions prohibiting the abuse of a dominant position contain lists that are
almost always indicative, except for the list of unfair trade practices in Japan, which
is exhaustive.27 The US provision of Sherman Act Section 2 contains no list of
prohibited practices, which is suggested to reflect the intention of the drafters to
create a common law system of enforcement—as opposed to a code-centred
administrative system—that leaves generalist federal judges applying the undefined
concept of ‘monopolisation’ with vast discretion in defining the legal wrongs.28
Similarly, the prohibition of private monopolisation in Japan also does not contain a
list although the Japanese Fair Trade Commission (JFTC) has issued guidelines that
indicate typical prohibited practices.29
In most EU Member States, the provisions have been modelled after the list of
practices contained in Article 102 TFEU. This modelling takes the form of either
almost identically copying the list in Article 102 TFEU or expanding on the list of
Article 102 TFEU. Some lists include more examples, such as the explicit and
separate prohibition of refusal to deal or below-cost pricing.30 Some jurisdictions
that are not EU Member States but have agreements with the EU (neighbourhood
policy, EEA, FTA or accession agreements) have also modelled their prohibitions
after Article 102 TFEU.31 The listing of practices appears to have particular

significance in one jurisdiction, namely Switzerland, where if the practice in
question is not found in the list of prohibited practices, it may not be subjected to
fines due to not fulfilling the requirements of predictability as envisaged by Article
7 of the European Convention on Human Rights.32 The only EU Member State
whose legislation does not contain a list is the statute of the Netherlands, although
the Explanatory Memorandum does refer to the Article 102 TFEU list.33 Some
jurisdictions, such as the UK and France, also contain explicit legal exclusions from
the prohibition of unilateral anticompetitive conduct.34

27

Svetlicinii, Moldova, p. 4; Beeston and Geilmann, Netherlands, p. 2; Camusso and De Cesero,
Italy, p. 5; Sabbadini, Belgium, p. 4; Pallerosi, Brazil, p. 4; Papp, Hungary, p. 5; Fussenegger et al.,
Austria, p. 2; Goldammer, Lithuania, p. 2; Itoh, Japan, pp. 1 -2; Kongsli, Norway, p. 1; Ivanytska,
Ukraine, p. 5; Stawicki et al., Poland, p. 1; Petrov, Bulgaria, p. 7; Bergqvist, Sweden, p. 1; Boudou
et al., France, p. 3; Ca~nadas Bouwen and Suderow, Spain, p. 3; Switzerland, Cherpillod, p. 4;
Robinson, UK, p. 7; Germany, p. 4; Hong Kong, pp. 2, 8, 15: the provisions state either ‘including,
but not limited to’ or ‘in particular’. The Japanese Anti-Monopoly Act prohibits two types of
conduct: i. private monopolisation; ii. unfair trade practices; Itoh, Japan, p. 1.
28
Baker et al, p. 6.
29
Itoh, Japan, p. 1.
30
Provisions which add to the Article 102 TFEU list are found in Bulgaria; Spain; Austria; Poland;
France; Hungary; Germany.
31
These are Moldova; Ukraine; Switzerland; Norway.
32
Cherpillod, Switzerland, p. 4.

33
Beeston and Geilmann, Netherlands, p. 2.
34
Robinson, UK, p. 9; Boudou et al., France, p. 10.