LIECHTENSTEIN Law and Practice Contributed by: Hannes Arnold, Thomas Nigg, Christina Pointner, Sebastian Auer, Johannes Sander, René Saurer and Marta Baftiaj, Gasser Partner
6.4 Abuse of Dominant Position As mentioned above, Liechtenstein has no separate national antitrust statute. Rather, unilateral conduct is governed by Article 54 EEA, prohibiting the abuse of a dominant position within the EEA or a substantial part of it, insofar as trade between EEA states may be affected. Thus, a dominant position is not unlawful in itself, but a dominant undertaking must not abuse its • directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; • limiting production, markets or technical develop - ment to the prejudice of consumers; • applying dissimilar conditions to equivalent trans - actions with other trading parties, thereby placing them at a competitive disadvantage; or • making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. market power to restrict competition. Such abuse may, in particular, consist in: The assessment is effects-based. The decisive issue is not, as such, where the conduct was carried out, but whether the undertaking holds a dominant posi - tion within the EEA or a substantial part of it, whether the conduct is abusive, and whether trade between EEA Contracting Parties may be affected. Conduct carried out in Liechtenstein or outside Liechtenstein may therefore be relevant if it has the required effects in the EEA. Enforcement and decision-making competence for individual Article 54 EEA cases is allocated under Arti - cle 56 (2) EEA Agreement to the surveillance authority in whose territory the dominant position is found to exist, with the further allocation rules in Article 56 (1) applying where a dominant position exists in the ter - ritories of both surveillance authorities. Liechtenstein’s Act against Unfair Competition (UCA) operates alongside the EEA competition-law regime as an adjacent unfair-competition regime. It does not create a separate national antitrust prohibition of abuse of dominance, relative market power or
Agreement, in particular the prohibition on agree - ments, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition within the EEA pursuant to Article 53 EEA Agreement. The rules cover classic cartel conduct such as: • directly or indirectly fixing purchase or selling prices or any other trading conditions; • limiting or controlling production, markets, techni - cal development, or investment; • sharing markets or sources of supply; • applying dissimilar conditions to equivalent trans - actions with other trading parties, thereby placing them at a competitive disadvantage; and • making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Agreements or decisions prohibited under Article 53 (1) EEA Agreement shall be automatically void under Article 53 (2) EEA Agreement. The decisive issue is not where the agreement was signed or implemented, but whether it may affect trade and competition in the EEA. Agreements that satisfy the conditions for exemption may be permissi - ble – ie, if they generate efficiencies, allow consumers a fair share of the benefit, are indispensable to those efficiencies and do not eliminate competition. The Liechtenstein Office of Economic Affairs assesses requests, market information and complaints concern - ing national or international competition law. Under Article 2 (1) of the Liechtenstein Act on the Imple - mentation of the Competition Rules in the European Economic Area, the Office of Economic Affairs is the Liechtenstein authority responsible for implementing the EEA competition rules, unless jurisdiction lies with the courts. In that role, it assists the EFTA Surveillance Authority and/or the European Commission in EEA competition matters. Where jurisdiction lies with the courts, competition-law issues may also arise in judi - cial proceedings, including in civil disputes between private parties.
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