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EUROPEAN COMMISSION DG Competition - page 62 / 113





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have effects in other markets are dealt with in the section on tying and bundling. Rebate systems that lead to mixed bundling of different products in the same market are also dealt with in the section on tying and bundling.

Domco likely to supply most of customer’s requirement anyway 143. The dominant position of the supplier will make that on average the buyers, also without loyalty enhancing measures, will buy a large part or even most of their purchases from the dominant supplier. The dominant position usually implies that for a good part of demand on the market there are no proper substitutes to the dominant supplier’s product, because for instance its brand is a ‘must stock item’ preferred by many final consumers or because the capacity constraints on the other suppliers are such that a good part of demand can only be provided for by the dominant supplier. For distributors it may be necessary to trade in the dominant supplier’s products in order to be able to satisfy an important part of their customers’ demand and in order to reach a viable scale of business.89

Consider likely and actual foreclosure effects 144. Article 82 addresses single branding obligations and rebate systems to the extent that these are methods different from those which condition normal competition and which have as effect to hinder the maintenance of the degree of competition still existing in the market or the growth of that competition.90 The Commission will make its assessment of the obligation or system in the light of the likely and actual foreclosure effects. In that context it will also consider the possibilities of the existing and possible future competitors to curb and counter the fidelity enhancing potential of the dominant company’s conduct.

Relevance of size of Domco’s tied share 145. The incidence, i.e. the extent that the dominant company is applying the single branding obligation or rebate system in the market, is the same as its tied market share, i.e. that part of its market share sold under the single branding obligation or rebate system. The potential



See section 4 on dominance. See also Case T-219/99 British Airways, cited in footnote 86, paragraphs 276-278, and Case T-65/98 Van den Bergh Foods Ltd v Commission [2003] ECR II-4653, paragraph 154. Case – 85/76 Hoffmann-La Roche, cited in footnote 5, paragraph 91.

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