Wednesday, January 8, 2014
Lia Vitzilaiou provides comments on Abusing Salty Snacks: A Bad Habit With Anticompetitive Effects.
ABSTRACT: By its judgment No. 869/2013, the Athens Administrative Court of Appeals ruled on an appeal filed by TASTY FOODS S.A. against decision No. 520/VI/2011 of the Hellenic Competition Commission. The AACA judgment fully upheld the HCC decision on the merits, acknowledging however some attenuating circumstances which reduced the total penalty imposed.
The HCC decision No. 520/VI/2011 ("TASTY decision") concerned the abuse of dominance in the Greek market of salty snacks and is considered one of the most important cases of the last years, not only due to the multiplicity, complementarity, and intensity of the abusive practices identified, but also due to the extent and depth of the analysis deployed by the HCC. In this aspect, the TASTY decision not only provides useful guidance for the self-assessment of dominant undertakings on a variety of commercial practices, such as rebate schemes and slotting allowances, but it also gives an insight on the HCC approach to the long standing debate about the necessity of proving actual anticompetitive effects to substantiate abuse of dominance—a view depicted in the EU Commission Guidance on its Enforcement Priorities ("Commission Guidance")—or, in the absence of such evidential burden, the mere tendency of causing such effects being sufficient to substantiate abuse, a view adopted by the EU courts in their traditional case law. This article is organized as follows: the second section briefly outlines the TASTY dispute; the third section analyzes TASTY's position and individual business practices, as appraised by the HCC and AACA; the fourth section presents the main examples of the effects-based approach in the HCC analysis; and the last section concludes.