COMPETITION • EUROPEAN LAW • ABUSE OF DOMINANT POSITION
Discriminatory practices may constitute abusive conduct by an undertaking in a dominant position. This is the case in particular of applying preferential tariffs or differentiated commercial fees or imposing restrictions based on nationality or place of establishment. On the other hand, the statutory provision pursuant to which a company exploiting copyrights on an exclusive basis restricts itself to prohibiting users from participating in the author’s remuneration where its purpose is to repeatedly favor certain works of the beneficiary and without taking into account public taste or qualitative criteria, does not constitute abuse of a dominant position.
The EU judicature has recently clarified the conditions for prosecuting the abuse referred to in Article 102(2)(c), which consists in applying unequal conditions to equivalent services with regard to trading partners, thereby placing them at a competitive disadvantage. Even though, as the Court of Justice has stated, the application of Article 102(2)(c) TFEU, does not require the fixing of an appreciability (de minimis) threshold, the price discrimination referred to must affect the interests of the operator which was charged higher tariffs than its competitors. Where the effect of a tariff differentiation on the costs borne by the operator which considers itself to be wronged, or on the profitability and profits of that operator, is not significant, it may be deduced that that tariff differentiation is not capable of having any effect on the competitive position of that operator.
