COMPETITION • FRENCH LAW • ABUSE OF DOMINANT POSITION
An emerging market is characterized by a rapidly developing economy whose evolution is not without risks and instability. It is often a market that has recently opened up to competition. The emerging nature of a market is reflected in the rapid development of the various operators’ offerings, accompanied by rationalization initiatives, instability in the prices charged and the position of operators, the atomicity of supply and the preponderance of small operators. Thus, as it is a measure of potential competition, the elasticity of supply is of particular interest in this case. In such a market, the undertaking is driven more by a rationale of return on investment within a reasonable time-frame than by the immediate coverage of all costs.
The competition authorities consider that an emerging market must be protected from a practice whereby the incumbent operator acquires a decisive position for the future and to freeze the positions of the other players. Thus, the practices of an incumbent supplier aimed at dissuading potential customers from using its subsidiary’s competitors, which are likely to restrict access to an emerging market and to produce a structuring effect if they were to continue, cause serious harm to a sector that is in full development. When setting the amount of the fine, the fact that the practice takes place on an emerging market may constitute an aggravating circumstance.
