Article 102 of the Treaty on the Functioning of the European Union

Article 102 of the Treaty on the Functioning of the European Union (formerly Article 82 of the Treaty establishing the European Community) is aimed at preventing undertakings who hold a dominant position in a market from abusing that position. Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for consumers and society. It is the second key provision, after Article 101, in TFEU competition law. The text of provides the following,

Such abuse may, in particular, consist in:

First it is necessary to determine whether a firm is dominant, or whether it behaves "to an appreciable extent independently of its competitors, customers and ultimately of its consumer." Under EU law, very large market shares raise a presumption that a firm is dominant, which may be rebuttable. Where a firm has a dominant position, it has "a special responsibility not to allow its conduct to impair competition on the common market".

Market shares are determined with reference to the particular "relevant market" in which the firm and product in question is offered.

Market definition refers to the delineation of this relevant market. It can be an important or complex part of a competition case under Article 102. If the market is defined too widely then it will contain more firms and supposedly substitutable products, preventing a finding of a dominant position. If the market is defined too narrowly then there might be an incorrect presumption that the company is dominant. There are various ways to define whether a company is dominant;

The Product Market Questions, what other products or services might consumers switch to?

Another question that can be asked is if new undertakings can enter the market in the short term?

The Geographical Market

Abusive conduct is usually organised under different categories, from those in Article 102, and more. As was stated in Continental Can [1973] the categories are not closed.

Under Article 102(a) "directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions" is considered abusive. Price exploitation is one example. It is difficult to prove at what point a dominant firm's prices become "exploitative" and this category of abuse is rarely found. In one case however, a French funeral service was found to have demanded exploitative prices, and this was justified on the basis that prices of funeral services outside the region could be compared.

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