The purpose of this article is to look at the notion of dominance in the cases on the abuse of market power arising in the Member States in the last ten years, mainly those which have featured in e-Competitions . The national courts and national competition authorities (NCAs) of the Member States apply both Article 102 TFEU, in cases where there is an effect on inter-Member State trade (although NCAs have been deprived of the power to take "negative decisions" by the Court of Justice’s Tele2 Polska ruling of 3 May 2011 ), and the corresponding provisions of their domestic competition laws. An examination of the reports in e-Competitions reveal that NCAs often refer to the Commission’s Guidelines on the effect of trade  in determining that conduct which might at first sight appear to be purely national does have an effect on inter-Member State trade, particularly if it covers the whole territory of a Member State. They therefore apply Article 102 as well as national law . Fines imposed by reference to a breach of both EU and national law, however, may be quashed as infringing rules on double jeopardy .
1. "Dominance" in EU law
The legal definition of a dominant position in EU law was given by the ECJ in United Brands and Hoffmann-La Roche: "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 its consumers"  (hereafter "the UB/HLR definition"). This has been repeated and applied by the Court ever since . In the Guidance Paper on Article 102 the Commission starts with the UB/HLR definition, but explains it as "substantial market power" and links it to the economic definition of substantial market power as the capability of profitably increasing prices above the competitive level for a significant period of time  rather than identifying dominance with the ability to prevent effective competition. Whether or not an undertaking is in a dominant position is decided by first identifying the relevant product and geographic market and then assessing the position of the undertaking on that market . The Commission issued a Notice on market definition in 1997, setting out the criteria which it applies for the purpose of defining the relevant market in each particular case. The General Court has held  that by adopting and publishing such rules of conduct the Commission has determined, generally and abstractly, the criteria which it has bound itself to apply: it has imposed a limit on the exercise of its discretion and must not depart from the rules on pain of being penalised, where appropriate, for breach of the fundamental principles of law . Nevertheless the General Court reminded the Commission that it is required "when exercising its power of appraisal, to adhere to the criteria laid down in the case-law, such as supply-side substitutability and demand substitutability".
Basing itself on the case law the Commission in the Notice defines a relevant product market as "all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use"  and the Commission’s preference, explained in its Notice on market definition , is to define both product and geographic markets using quantitative rather than qualitative techniques . The assessment of the undertaking’s position on the market is made by examining the undertaking’s current market position, in particular its market share in relation to its competitors’, and then other factors indicating dominance, especially barriers which would impinge upon entry or expansion by actual or potential competitors. Countervailing buyer power may also be relevant . The case law has placed a great deal of emphasis on the importance of market share and establishes that in effect there is a presumption of dominance at a 50% market share . The Commission Guidance Paper tries to play down the heavy reliance on market shares, describing them as a "useful first indication" and stating that it will interpret them in the light of the relevant market conditions, particularly the dynamics of the market and the extent of any product differentiation. The case law establishes no market share threshold below which dominance would not be found . In its Guidance Paper the Commission did not establish a "safe harbour" below which it would not take enforcement proceedings, although it made it plain that it considers that dominance is not normally likely below 40%.
In the last ten years the Article 102 cases have been, on the whole, most controversial on the abuses with which they have dealt. A number of them, however, have raised contentious issues in respect of dominance. For example, IMS established the possibility of the existence hypothetical markets in inputs , Microsoft grappled with the problem of separate markets or integrated products , and AstraZeneca dealt with difficulties in both market definition and dominance analysis in the pharmaceutical industry . In AstraZeneca the General Court held that the general principles of market definition apply in the pharmaceutical industry and defined the market by reference to the therapeutic use of a medicine. It suggested that the existence of national price and reimbursement regimes may reinforce the market power of pharmaceutical companies by shielding them from competition . No super-dominance in TeliaSonera, the Court of Justice disapproved the concept of "super-dominance" to the extent that it implied any variation in form or degree in the concept of a dominant position. Rather, the degree of market strength is, as a general rule, significant only in relation to the extent of the effects of the conduct of the dominant undertaking .
2. Dominant position in the domestic legislation of the Member States
All the Member States have domestic legislation which is the equivalent of Article 102. In some Member States the legislation refers to the abuse of a dominant position without any definition given as to the meaning of that concept of a dominant position but the EU UB/HLR definition is applied. This is the position in Denmark, France, Greece, Ireland, Italy, Luxembourg, Romania, Spain, Sweden and the UK. In some cases, such as Italy and the UK, there are statutory provisions containing a general requirement to interpret the domestic law in line with EU law. The legislation of some of these States does contain, however, provisions as to how a dominant position is to be determined.
Some Member States give a definition of dominance which copies the UB/HLR definition or copies it with minor textual/grammatical variations. This is so in respect of Belgium, Cyprus, Latvia, Malta, Netherlands, and Poland. These Member States invariably follow the application of the definition in EU law, although some make express provision re presumptions as explained below. Again, some Member States have express provisions as to the determination of dominance.
Some Member States provide their own definition of dominance - Austria, Bulgaria, the Czech Republic, Estonia, Finland, Germany, Hungary, Lithuania, Portugal, Slovenia, and Slovakia. Some of these are similar to the UB/HLR definition but do not expressly contain the element of the ability to "prevent effective competition being maintained on the relevant market" which is arguably the most significant element of the UB/HLR definition . This is so in respect of the Czech Republic’s definition "One or more undertakings jointly (joint dominance) shall be deemed to have a dominant position in the relevant market, if their market power enables them to behave independently to a significant extent of other undertakings or consumers" , Estonia’s "For the purposes of this act, an undertaking in a dominant position is an undertaking or several undertakings operating in the same market whose position enables it/them to operate in the market to an appreciable extent independently of competitors, suppliers and buyers" , Hungary’s "A dominant position shall be deemed to be held on the relevant market by persons who are able to pursue their business activities to a large extent independently of other market participants substantially without the need to take into account the market reactions of their suppliers, competitors, customers and other trading parties when deciding their market conduct" , Slovenia’s "An undertaking or several undertakings shall be deemed to have a dominant position when they can, to a significant degree, act independently of competitors, clients or consumers" and Slovakia’s, "A dominant position in the relevant market is held by an undertaking or several undertakings that are not subject to substantial competition or can act independently as a result of their economic power" .
According to Austria’s Cartel Act  an undertaking holds a dominant position if it either is exposed to no or only insignificant competition, or it holds a predominant market position in relation to other competitors. In this regard, financial strength, relationships with other undertakings, access to suppliers and markets, as well as entry barriers for other undertakings shall be considered when assessing market power. Furthermore, an undertaking shall also be deemed dominant if it has a predominant position in relation to its customers or suppliers . This is particularly the case if customers and suppliers are obliged to maintain business relations with the dominant company in order to avoid serious economic disadvantages. In Bulgaria, a dominant position is "the position of an undertaking which, in view of its market share, financial resources, possibilities for market access, level of technology and economic relations with other undertakings may hinder competition on the relevant market, as it is independent of its competitors, suppliers or customers" . Furthermore it is specifically provided that the "position of an undertaking which by law has the exclusive right to carry out a certain type of economic activity shall be monopolistic"  and such monopolies are subject to the same abuse provision  as are undertakings in a dominant position. In Finland, the legislation provides that a "dominant position shall be deemed to be held by a business undertaking or an association of business undertakings, who, either within the entire country or within a given region, hold an exclusive right or other dominant position in a specified product market so as to significantly control the price level or terms of delivery of that product, or who, in some other corresponding manner, influence the competitive conditions on a given level of production or distribution" . Germany provides that an undertaking is dominant where on the relevant product and geographic market (i) it has no competitors or is not exposed to any substantial competition or (ii) it has a paramount market position in relation to its competitors (determined in an overall appraisal of all competition-relevant facts, including its market share and barriers to entry) . However, it also extends the general prohibition of discriminatory practices to non-dominant undertakings with relative market power vis-à-vis small and medium-sized suppliers or purchasers and also prohibits “unfair hindrance” of them . In Lithuania, a dominant position means the position of one or more undertakings in the relevant market directly facing no competition or able to make a unilateral decisive influence in such relevant market by effectively restricting competition . In Portugal, the statutory definition of a dominant position provides that an undertaking is to be understood as dominant where it is active in a market in which it faces no significant competition or in which it predominates over its competitors; and that two or more undertakings that act in concert in a market in which they face no significant competition or in which they predominate over third parties are also considered to be in a dominant position .
Some Member States have express provision in respect of presumptions of dominance. Austria provides for a rebuttable presumption if an undertaking has a market share of at least 30 per cent; is exposed to competition by not more than two other companies and has a market share of more than 5 per cent; or is one of the four largest undertakings, which together have a market share of at least 80 per cent, provided it has itself a market share of more than 5 per cent of the market, regardless of whether the market is to be defined nationally, regionally or locally.  Estonia presumes a dominant position if an undertaking accounts for at least 40 % of the turnover in the market  and provides that undertakings with special or exclusive rights or in control of essential facilities as specified in the legislation are also in a dominant position . Germany presumes a single undertaking is dominant if it has a market share of at least one third . Lithuania presumes single firm dominance at a 40% market share (30% if the undertaking is engaged in retail trade) , Poland  and Slovenia  presume dominance above 40%. Sweden’s legislation does not provide for a presumption but the Swedish Competition Authority states that a market share exceeding 40% is an indication of a dominant position but not decisive . The Czech Republic also uses a threshold of 40% of market share, but it that case an undertaking or undertakings with joint dominance are deemed not to have a dominant position if their market share does not exceed 40 %, unless proven otherwise by other factors such as barriers to entry .
3. Dominance in the National Case Law
The present survey of national cases reported upon in e-Competitions predictably includes a number of cases in the liberalized sectors of telecommunications, utilities etc where dominance was not an issue  although attention was often given to the delineation of the market. For the purpose of convenience only the issues of market definition and the finding of dominance are dealt with successively in this survey.
3.1. There are a number of national cases which have thrown up extremely interesting problems of market definition. In many of these the NCAs and national courts made express references to European Commission Notices  and cases. This could even be so before the State in question had acceded to the EU .
In Competition Authority v. O’Regan , the Irish Supreme Court dealt with one of the Microsoft issues, namely whether there are two markets where an abuse of tying is alleged. The case concerned the Savings Protection Scheme (SPS) established by the Irish League of Credit Unions (ILCU). Some credit unions, disaffected with the ILCU, felt unable to disaffiliate from it as they would thereby lose the protection of the SPS stabilisation service. The Irish Competition Authority, upheld in the High Court, considered there was an illegal tie, in that credit unions had to buy ICLU’s services in order to use the SPS services. The Supreme Court, however, considered that the SPS and the regulatory regime of the ILCU were mutually inter-dependant. There was no evidence that anywhere in the world was the type of stabilisation service provided by the SPS independently supplied. On the contrary, there was strong evidence that such a stabilisation service was not a commercially saleable product. On the basis of the Microsoft decision  (as it then was, as the General Court judgment was not delivered until four months later ) there had to be two markets for there to be an abuse of tying which, the Supreme Court concluded, was not the position here.
In Germany, the Bundesgerichthof upheld the Bundeskartellamt’s finding of infringement of both Article 102 and section 19 of the Act against Restraints on Competition by the practice by which a soda stream manufacturer distributed the main consumable, the carbon dioxide cartridge, along with the machine and operated a "deposit system" by which the empty cartridges had to be exclusively returned to, and refilled by, the manufacturer. From the demand side bottled carbonated water and home made sodas served the same purpose. In fact the manufacturer argued that the SSNIP test suggested the market comprised bottled and homemade carbonated water (soda) but the court, recognising the cellophane fallacy possibility, found that this was not conclusive as it was uncertain whether the price level which served as a basis for the analysis had been the result of a competitive market. Moreover, bottled water was held to be irrelevant in this context as there was held to be a specific demand for spare parts and consumables for use in the manufacturer’s soda stream system. The market was therefore defined by reference to whether soda maker users could switch to other refillers of the cartridges they had acquired when they bought their system.
The court gave detailed consideration to whether other refilling systems could be regarded as belonging to the same market and concluded they could not as there was no proof of sufficient supply side substitutability .
Spare parts were also considered by the Danish Competition Council in two cases concerning spare parts inn the motor vehicle sector. The markets were respectively defined as original Mazda spare parts for Mazda cars in Denmark  and the Skoda spare parts distribution market . In the Mazda case the Council rejected Mazda’s argument that the market should be defined as Mazda spare parts and spare parts of matching quality. The Hungarian Competition Authority defined printers and printer cartridges as different markets  by reference to the Commission’s Pelikan/Kyocera decision .
Other interesting market definitions include the Polish Office for Competition and Consumer Protection defining the market for the collective management of copyrights for vocal and musical works as separate from that for other types of works protected by copyrights because of the different nature of other types of work and the different regulatory barriers (it also distinguished the markets for collective copyright management as separate from that for individual management) . In Luxembourg the market for disposal services with respect to problematic waste from SMEs was held to be separate from other waste disposal services as the services did not seem to be substitutable, especially on the supply side of the market where they were of no economic interest to the existing waste disposal undertakings . The Slovenian decision Slopak, concerned dominance on the non-communal packaging waste processing market which was treated as separate from that in respect of communal waste (an infringement of Article 102 was found as the dominant position was on the entire territory of Slovenia and service users and providers could be undertakings from other Member States) . In Belgium, two claims of abuse against the two main importers and distributors of French language books were dismissed after the Prosecutor had defined three relevant markets (marketing services market, distribution, and sales to dealers) by reference to the markets defined in the EU merger decision Lagardère/Natexis/VUP .
An interesting case of a very narrow product market is Austria’s Supreme Court holding that any film could constitute a market on its own if it could not be substituted due e.g. to the expected revenues from the film, its importance to the operator’s marketing strategy or its own special image (so, in casu,the relevant market was Asterix at the Olympic Games) . On the other hand, in a case alleging an abuse of dominance by Inbev, the largest brewer of pilsner beer in Belgium, the Belgian Competition Council rejected an argument that the relevant market was "Pilsner beer" or "Inbev beer" as it held that differences in price, taste etc did not put every beer into a separate market. Rather, the relevant market should be defined as the Belgian market for the production and sales of beer . In Spain the Competition Authority has defined narrow markets in the utilities sector  but declined to do so in a case concerning car insurance where it was argued that an undertaking with only 7% of the Spanish car insurance market was nevertheless dominant in respect of certain car repairers .
Narrow markets have been defined in cases of transport and transport infrastructures, as in EU cases, where courts and NCAs are applying the national provisions. The Düsseldorf Oberlandsgerichthof, dealing with a possible dominant position at Cologne/Bonn regional airport in respect of a claim under section 315 of the German Civil Code, defined a market for airport services for non-scheduled occasional charter flights. Such flights, it was held, are designed for time-conscious business people who wish to fly to specific airports and do consider others, even in close proximity, to be substitutable. On this basis any airport may be a separate market in relation to a highly specific segment of demand . In the French predatory pricing case, Societe Vedettes Inter-îles Vendeennes , the market was defined as passenger ferry services between the mainland and the Île d’Yeu in the summer season, as in the winter the public service provider faced no competition . The definition of the geographic market is often the crucial factor in transport cases. In the UK, local bus markets were under scrutiny in both Chester Bus and Cardiff Bus. In Chester Bus , the court dismissed a claim of abuse inter alia on the grounds that the claimants had not proved that the defendant was dominant, as they had not carried out sufficient analysis to show that the relevant market did not include other modes of transport such as cars as well as local buses, and that they had not defined the geographic market using the right metric . In Cardiff Bus , insufficient data were available for a statistical SSNIP analysis so the UK Office of Fair Trading (OFT) analysis considered two focal products: single flows and the network. Flow analysis, which it had previously used in merger cases in the transport sector, considers point-to-point journeys between stops on a route whereas network analysis examines the behaviour of passengers who buy network tickets The OFT considered the network market the most relevant because the undertaking concerned relied on its network for its market power. The OFT also employs isochrones in its analysis and in this case measured the undertaking’s market share on the basis of a 30 minute isochrone from a central bus station.
In Hellenic Petroleum and Motor Oil Hellas, the Hellenic Competition Commission defined a market for aviation fuel in a geographic market coinciding with the pipeline for aviation fuel from its starting location to Athens International Airport. The reason for this was that the competitive situation along this route differed from the conditions prevailing in other geographic areas, where aviation fuel was distributed via trucks or tankers .
Outside the transport sector geographic market definition played the major role in a UK case concerning crematoria services . The OFT’s definition of the geographic market as consisting of an area of a 30 km radius from a particular town was narrowed by the Competition Appeal Tribunal on appeal to the area immediately around the town chiefly on the basis of consumer choice having found customers reluctant to use anything other than their local crematorium. There are also cases concerning the selling of advertising space in local newspapers : in France (market defined as advertising in daily regional newspapers in Marseille) , Ireland (advertising in local newspapers in the greater Drogheda area, including both the local paid for and the freesheet newspapers)  and the UK (advertising space in paid-for and free local newspapers concentrated on the Aberdeen area) .
Both Portugal and Romania have had telecommunications cases which have involved complex issues of geographic market definition. In the Portuguese case, concerning the incumbent operator, PTC, the relevant product market was that of access to infra-structures for installing cables and infrastructures of networks for electronic communications. The Lisbon Commercial Court upheld the competition authority’s position that each section/branch of a duct was to be considered as relevant, given that interchangeability of PTC’s infrastructure only occurred on a local and not national level. However, the Court considered that only PTC had a network with national coverage that could serve the purpose of building a nation wide telecoms network (which was not practically replicable) and therefore held that PTC was dominant in the whole of the national territory (and therefore in the specific geographical areas at issue in the case) . In the Romanian case the relevant product market was that for cable TV services but, in examining the position of TV cable operators in particular areas, two main categories of geographic markets were identified - areas in which a sole operator was active and enjoyed a de facto monopoly position, where there were separate markets defined for each operator; and geographic markets represented by areas in which two or three operators were active .
3.2 Following the EU case law, in assessing dominance the national cases generally examine the market shares of the undertaking(s) under scrutiny from a relative as well as an absolute perspective and then consider other factors such as barriers to entry. The ways in which they do this, however, and the emphasis placed on the different aspects, vary. As seen in section 2 above, some Member States make express use of presumptions in their domestic laws.
There were a large number of cases in this survey where dominance was not an issue once the relevant market had been defined. National courts and NCAs tended to find insurmountable entry barriers where national network infrastructures were concerned . In a Polish case about water supply and sewage disposal services the regional undertaking concerned pleaded that it did not possess the ability to act in a significant degree independently of competitors and contracting parties and consumers as required for a dominant position according to the relevant national legislation . It argued that it had no water resources of its own and was therefore dependent on other entities for its supplies. The Supreme Court dismissed this: dominance means the ability to act independently of the customers affected by the anticompetitive behaviour, which here were the buyers of the water supply and sewage disposal services. It does not mean being able to control all production levels and the whole distribution chain of a given product or service . Outside the utilities and telecommunications sectors a market share of over 75% of the German dried spices and herbs market (where profit margins are up to 50% of the consumer price and the competitors each had market shares below 5%) led inevitably to a finding of dominance, with the Bundeskartellamt adding that the undertaking was not exposed to any substantial competition in the market .
Once narrow markets had been defined high market shares thereon led inevitably to a finding of dominance. This was so in the case of the Austrian Asterix at the Olympic Games film  where the holder of the exclusive rights had only a 9.5% share of the general film distribution market, and in the spare parts cases . In the Dutch case CRVthe undertaking was dominant with 80% of the market for the sale of breeding bulls’ sperm to farmers: not only was its market share many times that of its competitors but the market was very fragmented on the demand side, where the customers were a large number of farmers .
High market shares did not lead to a finding of dominance in the Irish case on advertising in local newspapers in the greater Drogheda area where the undertaking concerned (DIC) had a market share of 60-70%. That figure was a fall from a previous 100% market share before the launch of a rival paper, The Leader. DIC was now unable to behave independently of The Leader. It could not increase its advertising prices and had followed innovations introduced by The Leader. Moreover, there were low, and falling, barriers to entry to the local newspaper market, the population in the area (and therefore the size of the market) was growing, thus allowing new entrants to achieve MES more easily, and customer switching costs were low. Therefore, despite DIC’s large market share it was found not to be in a dominant position.
Where market shares above 50% are established EU case law presumes dominance . The Belgium Competition Council found Interbev dominant with 57% of the Belgian beer market which was highly concentrated. Interbev’s market share was four times that of its main competitor and stable, if not increasing . The Lithuanian Competition Council, however, closed a case of an abuse complaint against a natural gas supplier (LD) with a 59% market share and a main competitor with 40% (in the two previous years the figures had been 36/63 and 61/38 respectively), despite the presumption of dominance at 40% in the domestic law. Reopening of the case was ordered by the Administrative Court which decided that LD was dominant. Normally the presence of a strong competitor would have militated against such a finding, as held by the Council, but there were special circumstances here, including an agreement with Gazprom to provide LD with a minimum of 70% of the requirements of the Lithuanian natural gas market, and LD’s retention of a very large share of a stable market .
In the Netherlands, Dutch telecommunications operator had over 50% market share if the market was defined as broadband internet access for professional users, but under 50% if it was defined as the market for professional andprivate users. The court decided on the wider market, with no distinction as to end-users. Dominance would still have been possible but the court took into account, inter alia, the competitors - other cable operators with 39% and DSL providers - and the dynamic nature of a market characterised by fast technical development. The conclusion was that the undertaking had a strong position but not a dominant one .
The Greek Court of Appeal also took the dynamic nature of the market into account in a case concerning mobile phones. The supplier concerned had 47% of the Greek market but market shares were not stable in the sector . There were low barriers to entry and new market players continually entering . On the other hand, the Italian Competition Authority found an undertaking to be in a dominant position with approximately 46% of direct sales alone in the market for the production and commercialization of fosetyl-based fungicides (which protect grapevines from certain diseases). The Authority took into account the fact that the undertaking was the sole producer in the Italian market to both produce/sell the finished products and supply its competitors with pure fosetyl as an active ingredient and fosetyl-based formulas; that it had shown a high degree of pricing policy independence in the relevant three year period; and that it had nearly doubled its sales relative to its competitors despite the increase in its average prices compared to them .
In Hungary the Competition Authority dealt with a case where a bank was not dominant in terms of market share on either the financial services market or the housing loans market. Nevertheless it was held dominant vis-à-vis its existing customers as the customers were "captured" and unable to switch in response to the bank unilaterally increasing their financial burden because, inter alia, of high switching costs . In the Austrian enquiry into the wholesale and retail food distribution sector the Austrian Competition Authority, examining the procurement markets, concentrated on the buyer power of the retailers who were able to obtain better buying conditions from the suppliers. The Authority considered that once a proportion of 22% of a supplier’s turnover was tied to a specific customer there is de facto economic dependence of the supplier on that customer .
This brief survey shows the courts and NCAs of the Member States working from the basis of the EU notion of dominance and following the same method of assessing it. Although some national laws may articulate the notion in different way, and/or have a presumption of dominance at a lower threshold than EU law, the outcome is not discernibly different. The Member States must apply EU law directly where there is an effect on inter-Member State trade and do not seek to apply different principles where there is no such effect. Competition law cases are highly fact-specific and the actual application of the notion of dominance to any particular situation may always be open to criticism but that stems from the analysis made of the situation, including the difficulties of market definition, rather than from the concepts being employed. It will be noted that in several cases in this survey decisions taken by the primary decision maker were reversed on appeal.
Many cases where solely national law is applied will continue to be in liberalised sectors and in other markets where effects are purely national. However, given that Tele2 Polska has clarified that NCAs may not take negative decisions where they are applying Article 102 it may be that NCAs will take more care to ascertain the effect on inter-Member State trade issue in cases where there is room for doubt.