EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

regulation of B2B unfair trade practices solves market failure not by removing such a failure and “re-introduction” of market conditions, but by introduction by another type of non-market measure. Depending on the type of national B2B business, the encroachment into national competition rules can be different – either integrated, parallel, or contradictive. If B2B trade practices are somehow integrated into general rules of unfair commerce, then can create coherent system. However, a multitude of elements of national rules on B2B unfair trade practices tend to bypass competition law. First, they are developing different notions for a description of a firm that is not in dominant position in terms of “classic” competition law, such as “significant market power,” e.g., under Hungarian law it is a market situation, as a result of which the trader becomes or has become a reasonably indispensable contractual partner for the supplier in the course of delivering products and services to buyers and, due to its share in trade, it is able to influence the market entry of a product or product group at national or regional scale” (Papp, 2019, p. 148), or “superior bargaining power” under Bulgarian law shall be “shall be determined in view of characteristics of the relevant market’s structure and the particular transaction involving the undertakings concerned, also taking into consideration the level of dependence between them, the nature of their business and the difference in the scale thereof, the likelihood of finding an alternative trade partner, including the existence of alternative supply sources, distribution channels and/or customers” (Dinev, 2019, p. 50). Indeed, all these definitions, are in fact an attempt to define a dominant position that is not a dominant position under competition law. However, even venerable judgment in Hoffmann-La Roche case the CJ EU defined dominant position for the proposes of application of Article 101 TFEU “a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers.” Due to the flexibility of the application of the EU competition rules, concept of dominant position (and its abuse), and concepts of significant market power or superior bargaining power (and their abuse) can overlap. The second form of bypass of competition law (and possible interference with competition law) can arise from different types of per se or quasi-per se prohibited unfair contractual clauses. Two situations must be distinguished. If they are linked so sort of market power of one of contractual parties (superior bargaining power, significant market power), it can be still as a form of specific extension of market regulation. On the other hand, in the case of no abusive enforcement, to link to the market power (absolute or relative) it can fully fall into the scope of market-neutral private law and thus possible encroachment with competition law.

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