Opinion of the Advocate General — ECLI:EU:C:1998:264
Date: 1998-05-28
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — CASE C-7/97 
2. Competition — Dominant position — Abuse — Refusal of an undertaking in a dominant posi­
tion to supply a rival undertaking with services indispensable to carrying on its business — 
Newspaper home-delivery scheme — Existence of other means of distribution — No abuse 
(EC Treaty, Art. 86) 
1. It is for the national courts alone which 
are seised of the case and are responsible 
for the judgment to be delivered to deter­
mine, in view of the special features of 
each case, both the need for a preliminary 
ruling in order to enable them to give their 
judgment and the relevance of the ques­
tions which they put to the Court. Con­
sequently, where the questions put by 
national courts concern the interpretation 
of a provision of Community law, the 
Court is, in principle, bound to give a 
ruling. 
Moreover, Article 177 of the Treaty, which 
is based on a clear separation of functions 
between national courts and the Court of 
Justice, does not allow the latter to review 
the reasons for which a reference is made. 
Consequently, a request from a national 
court may be rejected only if it is quite 
obvious that the interpretation of Com­
munity law or review of the validity of a 
rule of Community law sought by that 
court bears no relation to the actual facts 
of the case or to the subject-matter of the 
main action. 
In those circumstances, the fact that a 
national court is dealing with a restrictive 
practices dispute by applying national com­
petition law should not prevent it from 
making reference to the Court on the 
interpretation of Community law on the 
matter, and in particular on the interpreta­
tion of Article 86 of the Treaty in relation 
to that same situation, when it considers 
that a conflict between Community law 
and national law is capable of arising. 
Indeed, it is not impossible for the same 
situation to fall within the scope of both 
Community and national competition law, 
even if they consider restrictive practices 
from different points of view. 
In the context of such a reference, the cir­
cumstances concerning the applicability of 
Article 86 of the Treaty to the factual situ­
ation forming the subject-matter of the 
main proceedings fall within the scope of 
the assessment by the national court and 
are irrelevant for the purposes of verifying 
whether the questions referred to the Court 
are admissible. 
I - 7792 
BRONNER y MEDIAPRINT 
2. The refusal by a press undertaking which 
holds a very large share of the daily news­
paper market in a Member State and oper­
ates the only nationwide newspaper home-
delivery scheme in that Member State to 
allow the publisher of a rival newspaper, 
which by reason of its small circulation is 
unable either alone or in cooperation with 
other publishers to set up and operate its 
own home-delivery scheme in economi­
cally reasonable conditions, to have access 
to that scheme for appropriate remunera­
tion does not constitute an abuse of a 
dominant position within the meaning of 
Article 86 of the Treaty. 
For the existence of an abuse within the 
meaning of that provision to be capable of 
being established in such circumstances, it 
would be necessary not only for that the 
refusal of the service comprised in home 
delivery to be likely to eliminate all com­
petition in the daily newspaper market on 
the part of the person requesting the ser­
vice and for such refusal to be incapable of 
being objectively justified, but also for the 
service in itself to be indispensable to car­
rying on that person's business, for lack of 
any actual or potential substitute for that 
home-delivery scheme. 
That is not the case where, first, other 
methods of distributing daily newspapers, 
such as by post and through sale in shops 
and at kiosks, even though they may be 
less advantageous for the distribution of 
certain newspapers, exist and are used by 
the publishers of those daily newspapers 
and, secondly, there are no technical, legal 
or even economic obstacles capable of 
making it impossible, or even unreason­
ably difficult, for any other publisher of 
daily newspapers to establish, alone or in 
cooperation with other publishers, its own 
nationwide home-delivery scheme and use 
it to distribute its own daily newspapers. 
I - 7793