Access to facilities

Two English High Court cases appear to signal a new approach in abuse of dominance cases involving a refusal to provide access to a facility

Refusals by dominant undertakings to grant access to their facilities have often been assessed by reference to the essential facilities case law, especially where the party seeking access is, or would be, a new customer. The European Commission applied so-called “essential facility” principles in cases concerning access to ports and airport infrastructure in the 1990s, and article 102 of the treaty on the functioning of the EU has also been applied so as to mandate access under article 102 TFEU to other facilities (such as rail networks and the gas pipelines) in certain subsequent cases.

Abuse of dominance, UK

Excessive prices and profitability

What is a fair profit?

Often, observers such as politicians, consumer groups and the media state that a particular firm or sector is earning “too much” profit, based on readily available reported financial statements. However, accounting measures of profitability do not capture all of the relevant economic costs faced by a business and, as we discuss in this article, further robust economic analysis later reveals these perceptions of “too much” profit to be ill-founded.

Regulatory, Abuse of dominance

Kiwi parking

New Zealand’s Commerce Commission has decided to take no further action following its investigation into Wilson Parking New Zealand Ltd’s acquisition in July 2013 of rival Tournament Parking Ltd’s 63 parking assets.

Competition Issues, Abuse of dominance, Barriers to Entry, Transport, Aus / NZ

New York City bus tours

The US Department of Justice and New York’s attorney general have resolved a longstanding row with New York City tour bus operators.

US DoJ, Competition Issues, Abuse of dominance, Mergers / Acquisitions, Transport, US
The question of whether imaginative product development can or should amount to an abuse of a dominant position is difficult to answer

In September of this year, the French competition authority concluded an investigation into Nespresso by way of commitments. The competition concern arose from Nespresso’s imposition of a tie between its coffee machines and the branded capsules. Despite the emphasis in the legal theory upon tying, the principal conduct identified in the preliminary assessment as likely to infringe article 102 was a series of product innovations by Nespresso. Each of these developments appears to have had some measure of objective merit for Nespresso’s product, yet the succession of changes nevertheless made it more difficult for other capsule manufacturers to compete.

The latest misguided theory about abuse of dominance

It is generally considered by both lawyers and economists that article 102 of the treaty on the functioning of the EU (TFEU) on abuse of dominant positions is the most unsatisfactory area of EU competition law. One of the principal reasons is that the European Commission apparently believes that there is no authoritative definition of exclusionary abuse. The Commission, in its guidance paper, said there is an important distinction between lawful foreclosure (the dominant company sells better products at lower prices, and its competitors leave the market) and “anticompetitive foreclosure”, which is unlawful. But it did not explain how to distinguish them. Economists advocate an effects-based approach, but have not suggested a test to say how lawful foreclosure effects should be distinguished from unlawful ones.


Drivers affiliated to Townville Taxis, which operates in part of North Queensland, will now be able to take bookings via apps on smartphones and also via mobile phones.

Article 106 TFEU rebooted against firms with special or exclusive rights

On 17 July 2014, the European Court of Justice (the ECJ) affirmed the conventional wisdom that the European Commission (the Commission) has sweeping powers under article 106 of the treaty on the functioning of the EU (TFEU) in dealing with ex-state monopolies or firms upon which the state has conferred “special or exclusive rights”.

The first time in India that a sectoral regulator and a competition agency both had jurisdiction over a dispute, the Tata Sky decision is still influencing cases today

The Indian Competition Act 2002 mandates the Competition Commission of India (CCI) to prevent anticompetitive activities and abuse of dominance within India.


The Australian Competition and Consumer Commission (ACCC) will not stand in the way of the purchase of a casino in Queensland by Aquis Reef Holdings.

The DLF case is a landmark decision regarding abuse of dominance and relevant market in India

Under the Indian Competition Act, the determination of relevance is the first step in the context of fact finding and examination of abuse of dominance and anticompetitive activity.


Google has made a second offer to try and settle its case with the European Commission.


The Canadian Competition Bureau is appealing the controversial 15 April decision of the Canadian Competition Tribunal in the case concerning the Toronto Real Estate Board (TREB)

A round-up of recent developments

It is a relatively busy time in Canada for abuse of dominance enforcement. In just the last few months, the Competition Tribunal (the Tribunal) has decided an application brought by the Commissioner of Competition (the Commissioner) against a trade association in the real estate brokerage industry; the Commissioner has commenced new proceedings to prohibit allegedly exclusionary practices in the rental water heater industry; and the Commissioner’s staff at the Competition Bureau (the Bureau) are demonstrating an interest in patents and the pharmaceutical industry after a period of relatively muted activity in the area that had distinguished it from its peer agencies in the US and Europe.


The European Commission is looking for feedback on commitments offered by Google in relation to online search and search advertising.


The OFT has issued a statement of objections to GlaxoSmithKline (GSK) and three smaller pharmaceutical undertakings, alleging that GSK entered into anticompetitive “pay for delay” deals with each of the companies.

The UK’s Competition Appeal Tribunal awards damages for abuse of dominance

by Elaine Whiteford*

On 28 March 2013, the Competition Appeal Tribunal (CAT) handed down its judgment in the action brought by Albion Water to recover losses resulting from an abuse of dominance that the CAT had previously decided had been committed by Dŵr Cymru.

The ACCC takes a swipe at Visa

On 4 February 2013, the Australian Competition and Consumer Commission (ACCC) commenced proceedings in the Federal Court of Australia against Visa Inc, and a number of Visa affiliates (together, Visa), alleging contraventions of the Competition and Consumer Act 2010 (Cth) (the Act) in relation to dynamic currency conversion services (DCC).