Opinion of the Advocate General — ECLI:EU:C:2015:343
Date: 2015-05-21
Language of the case: Danish
Subject matter: Competition;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary, it must therefore be concluded that: A rebate scheme operated by a dominant undertaking constitutes abuse within the meaning of Article 82 EC where an overall assessment of all the circumstances of the individual case shows that the rebates are capable of producing an economically unjustified exclusionary effect, it being important to take into account in that regard, in particular, the criteria and rules governing the grant of the rebate, the conditions of competition prevailing on the relevant market and the position of the dominant undertaking on that market. B – The importance of the ‘as-efficient-competitor’ (AEC) test (third part of the first question) 56. The third and last part of the first question is concerned in particular with the AEC test. The purpose of such a test is to ascertain, from a price/cost comparison, (33) whether a competitor as efficient as the dominant undertaking can compete with the latter or whether, on the contrary, the dominant undertaking’s rebate policy produces anti-competitive exclusionary effects on the relevant market. 57. The referring court asks whether a finding as to the existence of an abuse of a dominant position by a rebate scheme requires as a matter of law that an AEC test be carried out and, if that is not the case, what other circumstances may, where appropriate, support the conclusion that that rebate scheme constitutes abuse. 58. Those sub-questions must be viewed against the background of the Commission communication of 2009, (34) in which, in its capacity as competition authority, it set out its enforcement priorities in applying Article 82 EC. The referring court makes express reference to the Enforcement Priorities Communication in this regard. 59. In its Enforcement Priorities Communication, the Commission announced that it would normally intervene against price-based exclusionary conduct only where the conduct concerned has already been or is capable of hampering competition from competitors considered to be as efficient as the dominant undertaking. (35) In order to establish this, the Commission undertook to carry out, as a rule, an AEC test in connection with price-based exclusionary conduct. 60. Such an administrative practice by the Commission is not, of course, binding on the national competition authorities and courts, however. This follows, on the one hand, from the wording of the Enforcement Priorities Communication itself, which does not constitute ‘a statement of the law’, (36) and, on the other hand, from the settled case-law concerning such Commission statements. (37) Although the national authorities themselves are not precluded from following the Commission’s example and using the AEC test, they are none the less, from a legal point of view, bound only by the requirements arising from Article 82 EC. It is for the Court to define what those requirements are. 61. In my view, Article 82 EC does not support the inference of any legal obligation requiring that a finding to the effect that a rebate scheme operated by a dominant undertaking constitutes abuse must always be based on a price/cost analysis such as the AEC test. 62. It is true that the Court has on occasion called for an AEC test to be carried out in connection with pricing practices other than rebates, in so far as it has held that Article 82 EC prohibits a dominant undertaking from, among other things, adopting pricing practices that have an exclusionary effect on competitors considered to be as efficient as it is itself. (38) 63. However, that case-law does not support the inference of an absolute requirement always to carry out an AEC test for the purposes of assessing price-based exclusionary conduct from the point of view of competition law. On the one hand, that case-law is specifically concerned with pricing practices by dominant undertakings, such as a low-pricing policy (loss leader pricing, for example) or margin squeezing through the reduction of the cost-price ratio, which are by their very nature closely related to the cost structure of the undertakings in question. On the other hand, the form of words chosen by the Court, ‘among other things’ (French: ‘notamment’), (39) makes it clear that it cannot always be assumed that an abuse of a dominant position exists only where the exclusionary effect is felt by undertakings which are as efficient as the dominant undertaking. 64. With specific regard to rebate schemes operated by dominant undertakings, the Court has never yet made their classification as an abuse within the meaning of Article 82 EC conditional on a price/cost analysis. On the contrary, so far as such rebate schemes are concerned, it has held until very recently that the absence of a comparison of prices with costs does not constitute an error of law. (40) The Court should maintain that position in the present case too. 65. It would of course not be inconceivable, in theory, to make a finding of price-based exclusionary conduct routinely conditional on the carrying out of an AEC test, and therefore to prescribe such a test also in the case of rebate schemes operated by dominant undertakings. However, such a reorientation of the case-law concerning Article 82 EC warrants some scepticism, on a number of grounds. 66. On the one hand, the added value of expensive economic analyses is not always apparent and can lead to the disproportionate use of the resources of the competition authorities and the courts, which are then unavailable for the purposes of effectively enforcing the competition rules in other areas. The methodology applied can (as the submissions made before the Court by Post Danmark, Bring Citymail and the Danish Government amply demonstrate) prompt considerable differences of opinion. (41) What is more, the data available for use as a basis for such analyses are not always reliable (42) and presuppose that the dominant undertaking is genuinely ready to cooperate with the competition authorities and the courts, which, as the German Government has pointed out, is not always necessarily the case. 67. On the other hand, it is wrong to suppose that the issue of price-based exclusionary conduct can be managed simply and in such a way as to ensure legal certainty by applying some form of mathematical formula based on nothing more than the price and cost components of the businesses of the undertakings concerned. As I have already said, corporate data is not uncommonly open to different interpretations. 68. In particular, however, a finding of abuse in the context of Article 82 EC, as in other contexts, always requires an evaluation which takes into account all the relevant circumstances of the individual case in question and must not be confined to an examination of price and cost components alone. On the contrary, there are many other factors, such as the specific modus operandi of a rebate scheme and certain characteristics of the market on which the dominant undertaking operates, that may also be relevant to a finding of abuse. In fact, they may be much more informative than a price/cost analysis. 69. The fact of taking into account all the relevant circumstances of the individual case and considering whether there is any objective justification for the dominant undertaking’s commercial conduct adequately ensures that the legal requirements applicable to a finding of abuse within the meaning of Article 82 EC do not disregard economic realities. (43) 70. If the abusive nature of the rebate scheme operated by a dominant undertaking is immediately shown by an overall assessment of the other circumstances of the individual case, as I have described above, (44) there is no need, from a legal point of view, to carry out a price/cost analysis such as an AEC test. 71. It follows a fortiori that Article 82 EC is not capable of giving rise to a legal obligation to carry out an AEC test where, because of the way in which the market is structured, it is impossible for another undertaking to be as efficient as the dominant undertaking. This may be because of the particular conditions of competition prevailing on the relevant market (such as the fact that the market — as here — is characterised by high barriers to entry, high economies of scale and/or network-based services) or because the level of the dominant undertaking’s costs is specifically attributable to the competitive advantage which its dominant position confers on it. (45) 72. In such cases, it would from the outset make no sense to carry out some form of price/cost analysis in order to examine whether the rebate scheme operated by the dominant undertaking has an exclusionary effect on a purely hypothetical as-efficient competitor. If no competitor can be as efficient as the dominant undertaking, then, by extension, an AEC test will not provide any reliable conclusions as to whether or not there are likely to be any exclusionary effects on the market. 73. On the contrary, on a market in which competition is so weakened by the presence of a dominant undertaking that as-efficient competitors cannot even establish themselves there, (46) the competitive pressure exerted even by less efficient undertakings must not be underestimated. Maintaining that pressure is one of the fundamental objectives pursued by Article 82 EC. It is after all essential to ensure that the market structure and the choices available to customers do not deteriorate further because of the commercial conduct of the dominant undertaking. (47) 74. It follows that Article 82 EC prohibits an AEC test from being carried out on a market where, on account of the structure of the market, it is impossible for another undertaking to be as efficient as the dominant undertaking. 75. In summary, it must therefore be concluded that: Article 82 EC does not require the abusive nature of the rebate scheme operated by a dominant undertaking to be demonstrated by means of a price/cost analysis such as the as-efficient-competitor test, where its abusive nature is immediately shown by an overall assessment of the other circumstances of the individual case. However, the authorities and courts dealing with competition cases are at liberty to avail themselves of a price/cost analysis in their overall assessment of all the circumstances of the individual case, unless, on account of the structure of the market, it would be impossible for another undertaking to be as efficient as the dominant undertaking. C – The question of the appreciability of any anti-competitive effects of the rebate scheme (second question and second part of the third question) 76. Last but not least, the referring court wishes to ascertain, by its second question, how ‘probable and serious’ the anti-competitive effect of a rebate scheme operated by a dominant undertaking such as Post Danmark must be for Article 82 EC to ‘apply’. The same clarification is also sought by the second part of the third question, in which the referring court asks whether the ‘foreclosure effect’ of such a rebate scheme must be ‘appreciable’. 77. To my mind, it would be insufficient to respond to this issue by simply drawing the referring court’s attention to the procedural autonomy enjoyed by the Member States in matters of evidence. (48) This case is after all concerned with the substantive requirements to be attached to a finding of abuse within the meaning of Article 82 EC. Those requirements have the character of EU law and must be administered uniformly throughout the European Union so as to ensure that all undertakings active on the internal market operate within framework conditions for the rules of competition which are as uniform as possible (‘level playing field’). (49) 78. It is appropriate to look separately at the two points raised by the referring court, that is to say, the likelihood of an anti-competitive effect, on the one hand, and the seriousness of that effect, on the other. 1. Likelihood of the presence of an anti-competitive effect 79. First, the referring court asks how likely the anti-competitive effect of a rebate scheme operated by a dominant undertaking has to be in order to constitute abuse within the meaning of Article 82 EC. 80. It should be noted in that regard that the exclusionary effect of such a rebate scheme must not be of a purely hypothetical nature. (50) In other words, the schemes in question must be capable not only in the abstract but also in practice of making it difficult or impossible for the dominant undertaking’s competitors to gain access to the market and for its co-contractors to choose between various sources of supply or trading partners. (51) 81. It is not necessary for this purpose, however, to carry out a costly analysis of the actual effects of the rebates on competition, which is to say that it does not need to be determined whether an exclusionary effect was actually present. (52) The reason for this is that the prohibition contained in Article 82 EC also covers conduct by dominant undertakings which has a potentially anti-competitive effect. (53) Thus, even if Post Danmark were correct in asserting that the rebate scheme at issue was not ultimately the cause of Bring Citymail’s withdrawal from the Danish market, this does not preclude a finding of abusive conduct for the purposes of Article 82 EC. 82. According to settled case-law, it is necessary but also sufficient that the rebates in question can produce an exclusionary effect. (54) This is the case where, on the basis of an overall assessment of all the relevant circumstances of the individual case, the presence of the exclusionary effect appears more likely than its absence. (55) 83. It would in my view be inappropriate to set a higher bar for assuming the existence of an abuse that is incompatible with Article 82 EC and, for example, to require that the presence of an exclusionary effect must be ‘very likely’ or ‘particularly likely’ or must be assumed to be ‘beyond reasonable doubt’. 84. After all, a dominant undertaking — whatever the causes of its dominant position — has a particular responsibility to ensure that its conduct does not undermine effective and undistorted competition in the internal market. (56) That responsibility entails some obligation to exercise restraint on the market. The dominant undertaking must therefore refrain from all commercial practices which are likely to produce an exclusionary effect, not just those in the case of which such an effect seems ‘very likely’ or ‘particularly likely’ or must be assumed to be ‘beyond reasonable doubt’. 85. The degree of likelihood as to the presence of exclusionary effects may at most have a bearing on the extent of any penalties, such as, for example, the fines to be imposed by a competition authority. The level of those penalties must always fulfil the requirements of proportionality (Article 49(3) of the Charter of Fundamental Rights of the European Union and Article 23(3) of Regulation No 1/2003), which is to say that the severity of the penalty must increase in proportion as the likelihood of the exclusionary effect grows and the extent of that effect becomes greater. However, the issue of penalties does not form part of the subject-matter of the present preliminary ruling proceedings. 2. Seriousness of the likely anti-competitive effect 86. The referring court then seeks to ascertain how ‘serious’ or ‘appreciable’ the anti-competitive effect of a rebate scheme has to be to be caught by the prohibition of abuse laid down in Article 82 EC. 87. This touches ultimately on the issue of the appreciability of any anti-competitive effects arising from rebate schemes operated by dominant undertakings. It must be clarified whether a finding of abuse under Article 82 EC requires that the restriction of competition brought about by a rebate scheme exceeds some form of de minimis threshold. 88. As a number of parties to the proceedings have pointed out, the referring court’s doubts in this regard may well stem from a terminological issue arising from the 2012 judgment in Post Danmark. In the binding Danish-language version of that judgment, the expression ‘exclusionary effect’ is, surprisingly, rendered as ‘mærkbare virkninger’, (57) which has the same meaning as ‘appreciable effects’. Similarly, other parts of the same judgment refer to ‘eliminerende virkning’, (58) that is to say ‘eliminatory effect’, which also sounds comparatively strong. 89. A look at the French-language version, in which that judgment was drafted and deliberated, shows however that the choice of words in the Danish must be a translation error, as the French simply refers to ‘effet[s] d’éviction’, that is to say ‘exclusionary effect’, which is consistent with the other case-law concerning Article 82 EC. (59) 90. In those circumstances, the terms ‘mærkbare virkninger’ and ‘eliminerende virkning’ in the 2012 judgment in Post Danmark are not to be interpreted as meaning that some form of appreciability criterion or de minimis threshold applies to rebate schemes operated by dominant undertakings. On the contrary, abuse within the meaning of Article 82 EC is to be regarded as being constituted by all rebate schemes operated by dominant undertakings which are capable of producing an exclusionary effect, (60) not just those whose effects on competition are or may be ‘serious’ or ‘appreciable’. 91. After all, since the structure of competition of the relevant market has already been weakened by the presence of the dominant undertaking, within the field of application of Article 82 EC, any further weakening of the structure of competition may constitute an abuse of a dominant position. (61) 92. To the very same effect, the Court held (at about the same time as the 2012 judgment in Post Danmark) that the determination of a precise threshold beyond which the rebates granted by a dominant undertaking have to be regarded as abusive is not required for the purposes of applying Article 82 EC, (62) since customers should have the opportunity to benefit from whatever degree of competition is possible on the market and competitors should be able to compete on the merits for the entire market and not just for a part of it. Moreover, it is not the role of the dominant undertaking to dictate how many viable competitors will be allowed to compete for the remaining contestable portion of demand. (63) 93. The use of a de minimis threshold for the purposes of assessing the exclusionary effects of a dominant undertaking’s commercial conduct seems to be unnecessary for two further reasons: first, as I have already said, (64) the exclusionary effects referred to above are to be determined on the basis of a specific examination of all the relevant circumstances of the individual case and their presence must be more likely than their absence. Secondly, the prohibition of abuse contained in Article 82 EC is in any event directed only at conduct capable of affecting trade between Member States. 94. Each of those two considerations is in itself entirely sufficient to rule out the proposition that the prohibition of abuse laid down in Article 82 EC may apply to conduct the anti-competitive effects of which are only hypothetical or of wholly negligible significance. 3. Interim conclusion 95. In summary, it must therefore be concluded that: Aside from the requirement that a rebate scheme operated by a dominant undertaking must have an actual or potential adverse effect on trade between Member States, the exclusionary effect that may be produced by such a scheme does not have to exceed any form of appreciability (de minimis) threshold in order to be classified as abuse within the meaning of Article 82 EC. It is sufficient for the presence of such an exclusionary effect to be more likely than its absence. VI – Conclusion 96. In the light of the foregoing considerations, I propose that the Court should answer all of the questions referred by the Danish Sø- og Handelsret as follows: (1) A rebate scheme operated by a dominant undertaking constitutes abuse within the meaning of Article 82 EC where an overall assessment of all the circumstances of the individual case shows that the rebates are capable of producing an economically unjustified exclusionary effect, it being important to take into account in that regard, in particular, the criteria and rules governing the grant of the rebate, the conditions of competition prevailing on the relevant market and the position of the dominant undertaking on that market. (2) Article 82 EC does not require the abusive nature of the rebate scheme operated by a dominant undertaking to be demonstrated by means of a price/cost analysis such as the as-efficient-competitor test, where its abusive nature is immediately shown by an overall assessment of the other circumstances of the individual case. However, the authorities and courts dealing with competition cases are at liberty to avail themselves of a price/cost analysis in their overall assessment of all the circumstances of the individual case, unless, on account of the structure of the market, it would be impossible for another undertaking to be as efficient as the dominant undertaking. (3) Aside from the requirement that a rebate scheme operated by a dominant undertaking must have an actual or potential adverse effect on trade between Member States, the exclusionary effect that may be produced by such a scheme does not have to exceed any form of appreciability (de minimis) threshold in order to be classified as abuse within the meaning of Article 82 EC. It is sufficient for the presence of such an exclusionary effect to be more likely than its absence. 1 Original language: German. 2 See, in particular, judgments in Suiker Unieand Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174), Hoffmann-La Roche v Commission (85/76, EU:C:1979:36); Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313); British Airways v Commission (C‑95/04 P, EU:C:2007:166); Tomra Systemsand Others v Commission (C‑549/10 P, EU:C:2012:221); and Michelin v Commission (T‑203/01, EU:T:2003:250). 3 The question of the legal necessity of an AEC test in connection with rebate schemes also plays a significant role in the proceedings pending in Intel v Commission (C‑413/14 P). 4 Law on competition. 5 Competition Council. 6 According to information supplied by Post Danmark, the average rebate granted was 10.6%. 7 The other rebate levels were 75 000, 150 000, 300 000, 500 000, 750 000, 1 000 000, 1 500 000 and 2 000 000 items or a gross value of at least DKK 750 000, 1 500 000, 3 000 000, 5 000 000, 7 500 000, 10 000 000, 15 000 000 and 20 000 000. 8 Competition Appeals Tribunal. 9 Maritime and Commercial Court. 10 Judgments in Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 91); Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 70); and Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 17). 11 Judgment in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 57); see to the same effect judgments in France Télécom v Commission (C‑202/07 P, EU:C:2009:214, paragraph 105); Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 176); and TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraph 24). 12 Judgment in Compagnie maritime belge transports and Others v Commission (C‑395/96 P and C‑396/96 P, EU:C:2000:132, paragraph 131). 13 The judgments in AKZO v Commission (C‑62/86, EU:C:1991:286, paragraph 70); France Télécom v Commission (C‑202/07 P, EU:C:2009:214, paragraph 106); Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 177); and Post Danmark (C‑209/10, EU:C:2012:172, paragraph 25). 14 Judgments in Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 518); Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraphs 89 and 90); Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 71); Portugal v Commission (C‑163/99, EU:C:2001:189, paragraph 50); Tomra Systemsand Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 70); and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraphs 56 to 59). 15 Judgments in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 73); British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 67); Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 71); and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 60). 16 Judgment in British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraphs 68 and 69). 17 Judgments in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 73); British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 67); Portugal v Commission (C‑163/99, EU:C:2001:189, paragraph 50); and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 60). 18 Judgments in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 73); British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 67); Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 18 and 71); and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 60). 19 Judgment in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 85). 20 Judgments in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 73); British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 67); Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 71); and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 60). 21 See to that effect judgments in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 81); British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 73); and Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 75). 22 Judgment in British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 73). 23 Judgment in Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 79). 24 On the length of the reference period, see, for example, judgment in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 81). 25 See to that effect judgment in Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 20 and 21). 26 Judgments in Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 91); AKZO v Commission (C‑62/86, EU:C:1991:286, paragraph 69); TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 27); and Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 17 und 23). 27 Judgment in Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 65). 28 Judgment in Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 73). 29 See to that effect judgment in Post Danmark (C‑209/10, EU:C:2012:172, paragraph 23, in fine). 30 Judgments in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 82) and British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 75), as well as my Opinion in the latter case (EU:C:2006:133, point 52). 31 With specific regard to the requirement to take into account the position of the dominant undertaking as an unavoidable trading partner, see judgments in Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 41) and Compagnie maritime belge transports and Others v Commission (C‑395/96 P and C‑396/96 P, EU:C:2000:132, paragraph 132). 32 Judgment in Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 511). 33 This looks at the dominant undertaking’s average avoidable costs, its long-term average marginal costs and the price which one of its competitors would have to offer to the dominant undertaking’s customers in order to compensate them for the loss of the rebate granted by that undertaking. 34 Commission communication entitled ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’, presented on 24 February 2009 (OJ 2009 C 45, p. 7), (‘the Enforcement Priorities Communication’.) 35 Paragraph 23 of the Enforcement Priorities Communication. I shall take the liberty of pointing out in this regard that the German wording of that passage from the Enforcement Priorities Communication (‘daran hindert bzw. bereits gehindert hat, am Wettbewerb teilzunehmen’) reflects only approximately the legal provisions to the effect that actual anti-competitive effects do not need to be demonstrated (see judgments in British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 68) and Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 68 and 79). The English (‘has already been or is capable of hampering competition’) and French (‘ont déjà entravé ou sont de nature à entraver la concurrence’) language versions of the Enforcement Priorities Communication seem to be more readily compatible with the legal framework defined by Article 82 EC (Article 102 TFEU). 36 Paragraph 3 of the Enforcement Priorities Communication. 37 Judgments in Pfleiderer (C‑360/09, EU:C:2011:389, paragraph 21) and Expedia (C‑226/11, EU:C:2012:795, paragraphs 29 and 31). 38 Judgment in Post Danmark (C‑209/10, EU:C:2012:172, paragraph 25); see also judgments in Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, in particular paragraphs 177, 183, 196, 203 and 254) and TeliaSonera (C‑52/09, EU:C:2011:83, in particular paragraphs 67, 73 and 94); the judgment in AKZO v Commission (C‑62/86, EU:C:1991:286, in particular paragraphs 71 and 72) also relies, inter alia, on a price/cost analysis. 39 Judgments in Post Danmark (C‑209/10, EU:C:2012:172, paragraph 25) and Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 177, the German-language version of which renders the French ‘notamment’ as ‘u.a.’ (inter alia). 40 Judgment in Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 80; in addition, see also paragraph 73). 41 The fact that the result of an AEC test is not always clear is an assumption on which the Commission, too, proceeds in paragraph 25 of its Enforcement Priorities Communication. 42 The fact that an AEC test requires the availability of reliable data is emphasised by the Commission, too, in paragraph 25 of its Enforcement Priorities Communication. 43 See, in that regard, my Opinion in Solvay v Commission (C‑109/10 P, EU:C:2011:256, point 80). 44 See, in that regard, points 33 to 54 of this Opinion, above. 45 See, to that effect, judgment in TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 45, in fine). 46 See also, to that effect, paragraph 24 of the Enforcement Priorities Communication; see also judgment in Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 123, in fine). 47 Judgments in France Télécom v Commission (C‑202/07 P, EU:C:2009:214, paragraph 105); Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraphs 83 and 176); TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 24); and Post Danmark (C‑209/10, EU:C:2012:172, paragraphs 20 and 23), see, to similar effect, judgment in British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 66). 48 See, in that regard, the fifth recital in the preamble to Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 49 On the concept of the ‘level playing field’, see, for example, my Opinions in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:229, point 169); Toshiba Corporation and Others (C‑17/10, EU:C:2011:552, point 118); and KONE and Others (C‑557/12, EU:C:2014:45, point 29). 50 See, to that effect, judgments in Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 254) and TeliaSonera (C‑52/09, EU:C:2011:83, paragraphs 66 and 67). 51 See, in that regard, my Opinion in British Airways v Commission (C‑95/04 P, EU:C:2007:166, point 73). 52 Judgment in Tomra Systemsand Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 68 and 79); see, to the same effect, judgments in Tetra Pak v Commission (C‑333/94 P, EU:C:1996:436, paragraph 44) and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 239). 53 Judgment in TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 64); see, to the same effect, the judgment in Post Danmark (C‑209/10, EU:C:2012:172, paragraph 44), which refers to an ‘actual or likely exclusionary effect’. 54 Judgments in British Airways v Commission (C‑95/04 P, EU:C:2007:166, paragraph 68) and Michelin v Commission (T‑203/01, EU:T:2003:250, paragraph 239). 55 See, to that effect, judgment in Post Danmark (C‑209/10, EU:C:2012:172), which refers to ‘likely negative effects on competition’ (paragraph 42) and an ‘actual or likely exclusionary effect’ (paragraph 44). 56 Judgment in Nederlandsche Banden-Industrie-Michelin v Commission (322/81, EU:C:1983:313, paragraph 57); see, to the same effect, judgments in France Télécom v Commission (C‑202/07 P, EU:C:2009:214, paragraph 105); Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 176); and TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 24). 57 Judgment in Post Danmark (C‑209/10, EU:C:2012:172, paragraph 25). 58 Judgment in Post Danmark (C‑209/10, EU:C:2012:172, paragraph 41; see, to the same effect, paragraphs 17, 22, 27, 29 and 44). 59 See, in that regard, point 29 of this Opinion, above. 60 See again, in that regard, point 82 of this Opinion, above. 61 Judgment in Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 123, in fine). 62 Judgment in Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 46 and 48); see, to similar effect, the earlier judgment in Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 89, in fine), which states that fidelity rebates constitute an abuse ‘whether the quantity’ of the purchases in question ‘be large or small’. 63 Judgment in Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraph 42). 64 See again points 31, 68 and 82 to 85 of this Opinion, above.