# C_2017014EN.01002001.xml

| 16.1.2017 | EN | Official Journal of the European Union | C 14/20 |
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16.1.2017

EN

Official Journal of the European Union

C 14/20

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Request for a preliminary ruling from the Tribunal da Concorrência, Regulação e Supervisão (Portugal) lodged on 13 October 2016 — MEO — Serviços de Comunicações e Multimédia S.A. v Autoridade da Concorrência

(Case C-525/16)

(2017/C 014/26)

Language of the case: Portuguese

Referring court

Tribunal da Concorrência, Regulação e Supervisão

Parties to the main proceedings

Applicant: MEO — Serviços de Comunicações e Multimédia S.A.

Defendant: Autoridade da Concorrência

Other party: GDA — Cooperativa de Gestão dos Direitos dos Artistas Intérpretes ou Executantes, ‘GDA’

Questions referred

| 1. | If, in infringement proceedings, facts concerning the effects of any charging of discriminatory prices by an undertaking in a dominant position in relation to one of the retail undertakings, which prejudice that undertaking with regard to its competitors, are proven or evidenced, in order for that conduct to be characterised as placing at a competitive disadvantage within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU must there have been an additional assessment of the gravity, relevance or importance of those effects on the affected undertaking’s competitive position and/or ability to compete, in particular as regards its capacity to absorb the difference in the costs incurred in the context of the wholesale service? |
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1.

If, in infringement proceedings, facts concerning the effects of any charging of discriminatory prices by an undertaking in a dominant position in relation to one of the retail undertakings, which prejudice that undertaking with regard to its competitors, are proven or evidenced, in order for that conduct to be characterised as placing at a competitive disadvantage within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU must there have been an additional assessment of the gravity, relevance or importance of those effects on the affected undertaking’s competitive position and/or ability to compete, in particular as regards its capacity to absorb the difference in the costs incurred in the context of the wholesale service?

| 2. | If there is proof or evidence in infringement proceedings that the discriminatory prices charged by an undertaking in a dominant position are of significantly reduced importance for the costs incurred, income obtained and profitability achieved by the affected retail undertaking, is an assessment that there is no evidence of abuse of a dominant position and prohibited practices compatible with an interpretation consistent with subparagraph (c) of [the second paragraph of] Article 102 TFEU and the case-law established in the judgments in British Airways (1) and Clearstream? (2) |
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2.

If there is proof or evidence in infringement proceedings that the discriminatory prices charged by an undertaking in a dominant position are of significantly reduced importance for the costs incurred, income obtained and profitability achieved by the affected retail undertaking, is an assessment that there is no evidence of abuse of a dominant position and prohibited practices compatible with an interpretation consistent with subparagraph (c) of [the second paragraph of] Article 102 TFEU and the case-law established in the judgments in British Airways (1) and Clearstream? (2)

| 3. | Or, on the contrary, is such a circumstance insufficient to preclude the conduct in question from being characterised as abuse of a dominant position and a prohibited practice within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU, that circumstance being of relevance only for the purposes of determining the degree of liability or punishment of the infringing undertaking? |
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3.

Or, on the contrary, is such a circumstance insufficient to preclude the conduct in question from being characterised as abuse of a dominant position and a prohibited practice within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU, that circumstance being of relevance only for the purposes of determining the degree of liability or punishment of the infringing undertaking?

| 4. | Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum percentage of the affected undertaking’s costs structure? |
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4.

Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum percentage of the affected undertaking’s costs structure?

| 5. | Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum difference between the average costs incurred by the competitor undertakings in the wholesale service in question? |
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5.

Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum difference between the average costs incurred by the competitor undertakings in the wholesale service in question?

| 6. | May the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must, in the context of the market and service in question, correspond to values higher than the differences indicated in [...] Tables 5, 6 and 7, for the purposes of characterising the conduct as a prohibited practice? |
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6.

May the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must, in the context of the market and service in question, correspond to values higher than the differences indicated in [...] Tables 5, 6 and 7, for the purposes of characterising the conduct as a prohibited practice?

| 7. | If the answer to any of questions (iv) to (vi) is in the affirmative, how must such a minimum threshold of significance for the disadvantage in relation to the costs structure or the average costs incurred by the competitor undertakings in the retail service in question be defined? |
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7.

If the answer to any of questions (iv) to (vi) is in the affirmative, how must such a minimum threshold of significance for the disadvantage in relation to the costs structure or the average costs incurred by the competitor undertakings in the retail service in question be defined?

| 8. | If such a minimum threshold has been defined, does the failure to meet it in each year enable the presumption in the Clearstream judgment, according to which it must be considered that ‘the application to a trading partner of different prices for equivalent services continuously over a period of five years and by an undertaking having a de facto monopoly on the upstream market could not fail to cause that partner a competitive disadvantage’, (3) to be rebutted? |
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8.

If such a minimum threshold has been defined, does the failure to meet it in each year enable the presumption in the Clearstream judgment, according to which it must be considered that ‘the application to a trading partner of different prices for equivalent services continuously over a period of five years and by an undertaking having a de facto monopoly on the upstream market could not fail to cause that partner a competitive disadvantage’, (3) to be rebutted?

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(1)  C-95/04 P, EU:C:2007:166.

(2)  T-301/04, EU:T:2009:317.

(3)  Paragraphs 194 and 195.

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