|
Therefore we can conclude that the mere existence of exclusive or special rights automatically puts their holder in a dominant position. So the concept of dominance in Article 86(1) in combination with Article 82, which is a legal problem, is independent from the concept of dominant position in Article 82, which falls into a factual problem.
However Dr. J.L. Buendia Sierraalleged that the mere existence of an exclusive right does not automatically imply the existence of a dominant position. He took it as an example that an undertaking which has received the exclusive right to offer passenger transport services by airplane between two cities has without received an exclusive right within the meaning of Article 86 of the Treaty. However, it is possible that this undertaking does not have a ‘dominant position’ within the meaning of Article 82 of rail or road transport is included in the given market.
Nevertheless it seemed that he negate his standpoint by stating that when an exclusive right is created, at the same time a relevant market whose scope correspond to that of the exclusive right is artificially created.In fact according to his theory of organization a market, herein public authority certainly created a new market, airplane transportation market. So I upheld the view of the Court stated in ERT v. DEP. In addition regarding dominance within Article 86(1) in conjunction with 82 as a legal problem the Court would enjoy more freedom in judging liberalization cases to improve the Community integration.
4.2 Abusive Activities
Although the needs of any particular economy or state will vary, a system of competition law intended to ensure that workable competition is maintained in oligopolistic industries.Aiming to construct a framework of workable competition at a Community level, the Community can not tolerate anti-competitive activities of Member Sates, whatever form they adopt or maintain.
According to the behavior doctrine, a breach of Article 86(1) in combination with Article 82 requires public undertakings or privileged undertakings to engage in abusive behaviors. According to Article 82 alone it requires the actual abusive activities of undertakings. The undertakings prescribed under Article 82 are autonomous and their activities totally depend on the market. However, the situation herein is different. In many cases public undertakings and privileged undertakings do not function independently but instead is obliged to function according to the demands of public authorities. ‘When this situation occurs, an independent breach of Article 82 can not exist, but an infringement of Article 86(1) in conjunction with Article 82 would probably exists.’Of course it would be no doubt that public undertaking or privileged undertakings breach Article 86(1) with Article 82 when we can observe that these undertakings actually have abused dominant position. Otherwise how about the situation where we can not? Consequently we definitely cannot apply the methods within Article 82 to the cases subject to Article 86(1) in conjunction with Article 82.
While the behavior doctrine requires abusive behavior to have actually taken place for an infringement of Article 86(1) in conjunction with Article 82 to have existed, the practice of the Commission and the case law of the Court have proved much more flexible. The Court developed a new legal concept that being liable to abuse dominant position has the same effect as actually having abused dominant position. For instance, In Hofner the Court maintained that a Member State is in breach of the prohibition contained in Article 86(1) with Article 82 only if the undertaking in question, merely by exercising the exclusive right granted to it, can not avoid its dominant position.The similar words alleged by the Court can be found in ERT v. DEP , Merci , RTT , Crespelle , Albany International BV , Deutsche Post AGand so on.
|
