Abuse of Dominance - a view from Germany Abuse of dominance in the focus  Abuse of dominance laws and policies have been in the focus of discussions worldwide in the last years Reflections by U.S. authorities, the European Commission and others Important work done by the Unilateral Conduct Working Group of the ICN, co-chaired by U.S. FTC and Bundeskartellamt -Recommended Practices on Dominance Assessment -Reports on policy and practice with respect to specific types of conduct Dr Bernhard Heitzer Brno, 13 May 2009

Abuse of Dominance - a view from Germany Abuse of market power in the EC  European Court of Justice (ECJ) ensures consistent application of Article 82 EC  Regulation 1/2003 has led to great convergence with respect to substantive laws throughout Europe  Harmonisation finds its limits where particularities in national and sub-national markets call for stricter rules There must remain room for flexibility for Member States to have and apply such rules Dr Bernhard Heitzer Brno, 13 May 2009

Abuse of Dominance - a view from Germany Priority Setting in the Area of Article 82  Helpful that the Commission has elaborated priorities with respect to exclusionary conduct and made them public with its „Priorities Paper“ in December 2008  Since priorities may differ from country to country, it is of greatest importance that national competition authorities engage in their own priorities setting Dr Bernhard Heitzer Brno, 13 May 2009

Abuse of Dominance - a view from Germany Energy – Top Priority in Germany  The Bundeskartellamt has contributed significantly to opening up the energy sector to competition Long term gas supply case (2006): Market leader E.ON Ruhrgas to terminate existing long-term contracts which forclosed the markets Excessive gas prices (2008): Gas suppliers offered commitments amounting to 240 million Euros Dr Bernhard Heitzer Brno, 13 May 2009

Abuse of Dominance - a view from Germany The Commission‘s Priorities Paper  Preliminary analysis is important for priority setting  ECJ does not require consumer harm. Competition authorities need to carefully weigh pros and cons of analysing consumer harm. Keep in mind that quantitative analysis is based on assumptions and may only suggest accuracy  Analysis must remain manageable – we must not risk that the last competitive constraint dies away as a result of the conduct before we have finished the analysis Dr Bernhard Heitzer Brno, 13 May 2009

Abuse of Dominance - a view from Germany Case allocation in the EC  The ECN is a great success and case allocation works well in principle  NCAs and the European Commission must work closely together and make sure that cases which are rooted in domestic rather than Comminity-wide markets are dealt with by the NCAs as intended by the drafters of the Regulation Dr Bernhard Heitzer Brno, 13 May 2009