COMPETITION • FRENCH LAW • ABUSE OF DOMINANT POSITION
An exclusionary strategy is defined as the adoption, by an undertaking in a dominant position, of a plan to eliminate, discipline or discourage a competitor. According to the Commission’s Guidance on abusive exclusionary conduct by dominant undertakings, No 2009/C 45/02, there is “anticompetitive foreclosure” where “effective access of actual or potential competitors to supplies or markets is hampered or eliminated as a result of the conduct of the dominant undertaking whereby the dominant undertaking is likely to be in a position to profitably increase prices to the detriment of consumers“.
While the pursuit of an exclusionary strategy is one of the constituent elements of predatory pricing, it can also constitute, in its various forms, an abusive practice in its own right. This is the case for price alignment practices, the launch of a similar product, abuse of the right to bring legal action, the implementation of delaying tactics, the use of illegal, unfair advertising or a misleading commercial practice, the disruption of an undertaking, the disparagement of an undertaking’s products or its services, customer poaching, practices of cross-subsidies or the provision of resources derived from a monopolistic activity, the use of the brand image or reputation of an incumbent operator, unilateral modification of contractual conditions, sudden termination of commercial relations, the setting up of an after-sales service, a takeover bid or the use of confidential information.