Published online by Cambridge University Press: 05 June 2012
Dominance is not unlawful, but ‘where an undertaking is in a dominant position it is in consequence obliged, where appropriate, to modify its conduct so as not to impair effective competition on the market regardless of whether the Commission has adopted a decision to that effect’. This dual obligation on dominant firms, to avoid acts that harm competition and to modify their practices if they are likely to harm competition, forces them to observe the markets they operate in and to monitor the effects of their commercial practices, which may become illegal if market circumstances change. Every act of a dominant firm is laden with risk, in particular when even commercial behaviour regarded as normal may constitute abuse within the meaning of Article 82.
Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Anatomically, Article 82 contains a general section, which prohibits the abuse of a dominant position, followed by a non-exhaustive list of examples of behaviour that may constitute abuse.