Opinion of the Advocate General — ECLI:EU:C:2006:133
Date: 2006-02-23
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Dominant position
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: United Kingdom

summary way whether and how discriminatory trading conditions have had an impact of the competitive position of trading partners, (119) I conclude that, in this case also, the Court of First Instance can likewise not be accused of an error of law in that respect and that, in the circumstances, it was entitled to assume that BA’s commission schemes had a discriminatory effect for the purposes of subparagraph (c) of the second paragraph of Article 82 EC. 131. The fifth ground of appeal should therefore be dismissed in its entirety as unfounded. 132. I would mention purely for the sake of completeness that, under the case-law of the Court of Justice, a finding that rebates or bonuses granted by a dominant undertaking had discriminatory effect is not a mandatory precondition for finding that there has been an abuse of a dominant market position. In its judgment in Michelin I, for example, the Court found the rebates in question abusive, even though it found their discriminatory effect unproven. (120) G – Intermediate result 133. Since none of BA’s grounds of appeal have any prospect of success, I conclude that its appeal should be dismissed in its entirety. V – Costs 134. Under Article 69(2) in conjunction with Articles 118 and 122(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and BA has been unsuccessful, BA should be ordered to pay the costs. 135. Under the third subparagraph of Article 69(4) in conjunction with Articles 118 and 122(1) of the Rules of Procedure, the Court could order Virgin, as an intervener, to bear its own costs. In this case, however, since Virgin has intervened in support of the successful party, it seems appropriate to order BA to pay Virgin’s costs also, in accordance with Virgin’s application. VI – Conclusion 136. In the light of the above considerations, I propose that the Court should: 1) dismiss the appeal. 2) order British Airways plc to pay the costs of the proceedings. 1 – Original language: German. 2 – Commission Decision 2000/74/EC of 14 July 1999 relating to a proceeding under Article 82 of the EC Treaty (IV/D-2/34.780 – Virgin/British Airways) (notified under document number C(1999) 1973) (OJ 2000 L 30, p. 1). 3 – British Airways v Commission [2003] ECR II-5917. 4 – A first complaint was made on 9 July 1993 and an additional complaint was made on 9 January 1998 (see paragraphs 12 and 19 of the contested judgment). 5 – Recitals 90 and 91 of the contested decision and paragraph 22 of the contested judgment. 6 – Recital 31 of the contested decision and paragraph 21 of the contested judgment. 7 – Paragraph 4 of the contested judgment. 8 – Paragraph 14 of the contested judgment and paragraph 7 of the notice of appeal. 9 – Paragraph 5 of the contested judgment. 10 – Paragraphs 6 to 11 of the contested judgment. 11 – Paragraphs 14 to 18 of the contested judgment. 12 – Recitals 29 and 30 of the contested decision and paragraph 23 of the contested judgment. 13 – The expression ‘commission schemes’ is used hereafter as a generic term for marketing agreements applied by BA and their new performance reward scheme. 14 – Recital 96 of the contested decision and paragraph 24 of the contested judgment. 15 – The expression ‘its performance reward systems’ (French: ‘ses systemes de primes de résultat’) in paragraph 25 and elsewhere in the contested judgment is, however, uncertain, for it appears to relate solely to the new performance reward scheme. It is, however, clear from recitals 29, 30, 102 and 109 of the contested decision that there reference is made to both commission schemes – both the marketing agreements and the performance reward scheme. 16 – Recital 102 of the contested decision and paragraph 25 of the contested judgment. 17 – Recital 109 of the contested decision and paragraph 25 of the contested decision. 18 – Recitals 103 and 111 of the contested decision and paragraph 26 of the contested judgment. 19 – See, for example, Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 91; Case 322/81 Michelin v Commission (MichelinI) [1983] ECR 3461, paragraph 70; Case 31/80 L’Oréal v De Nieuwe AMCK [1980] 3775, paragraph 27; Case C‑62/86 AKZO v Commission [1991] ECR I-3359, paragraph 69). 20 – Michelin I (cited in footnote 19), paragraph 57. 21 – Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Belge Transports and Others v Commission [2000] ECR I-1365, paragraph 131. 22 – Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 189. 23 – See, to that effect Hoffmann-La Roche, paragraphs 91 and 123, Michelin I, paragraph 70, L’Oréal, paragraph 27, and AKZO, paragraphs 69 and 70 (all cited in footnote 19 above). 24 – AKZO, paragraph 70. 25 – Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 517 et seq.; Hoffmann-La Roche, paragraph 90 et seq.; Michelin I, paragraph 62 et seq.; Case C-163/99 Portugal v Commission [2001] ECR I-2613, paragraph 50 et seq. See also Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 101; Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II‑389, paragraphs 71 and 120; Case T-228/97 IrishSugar v Commission [1999] ECR II-2969, paragraphs 198, 201 and 213; Case T-203/01 Michelin v Commission (Michelin II) [2003] ECR II-4071, paragraph 53 et seq. Also the contested judgment (cited in footnote 3). 26 – In the proceedings before the Court of Justice, BA has repeatedly submitted that the Commission is envisaging a reform of its practice in relation to Article 82 EC and is planning the publication of a discussion paper for that purpose. 27 – See in particular paragraphs 273 (last sentence), 278 and 292 of the contested judgment. 28 – Cited in footnote 19. 29 – It is immaterial on this view whether such a condition is determined by contract or applied unilaterally by the dominant undertaking. 30 – Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097. 31 – Case 6/72 Europemballage and Continental Can v Commission (ContinentalCan) [1973] ECR 215, paragraph 26; Case C-333/94 P Tetra Pak v Commission [1996] ECR I-5951, paragraph 37; and Compagnie Maritime Belge Transports (cited in footnote 12), paragraph 112. 32 – In Hoffmann-La Roche and Michelin I (cited in footnote 19), for example, the Court of Justice based its reasoning on exclusionary effect on Article 86 of the EEC Treaty (now Article 82 EC) generally, and not exclusively on subparagraph (b) of its second paragraph. Only in Suiker Unie (cited in footnote 25), paragraph 526, did it refer expressly to subparagraph (b) of the second paragraph of that provision. 33 – Hoffmann-La Roche (cited in footnote 19), paragraphs 82 to 87. Similarly, in relation to the sugar market, Suiker Unie (cited in footnote 25), particularly paragraphs 499 and 510. 34 – Hoffmann-La Roche (cited in footnote 19), paragraph 89. Similarly Suiker Unie (cited in footnote 25), especially paragraphs 518 and 527. 35 – Hoffmann-La Roche (cited in footnote 19), paragraph 90. 36 – Michelin I (cited in footnote 19), paragraph 86. 37 – Michelin I (cited in footnote 19), paragraph 72. 38 – Michelin I (cited in footnote 19), paragraph 66 et seq. 39 – Michelin I (cited in footnote 19), paragraph 81. 40 – See in that regard Hoffmann-La Roche, paragraph 90, and Michelin I, paragraph 85 (cited in footnote 19). 41 – Paragraphs 244 and 245 of the contested judgment. 42 – Michelin I (cited in footnote 19), paragraph 73, first sentence, in conjunction with paragraph 72, last sentence. 43 – See the case-law cited in footnote 19. 44 – See point 33, second indent, of this Opinion. 45 – Michelin I (cited in footnote 19), paragraph 73, first sentence. 46 – Michelin I (cited in footnote 19), paragraph 73, first sentence. 47 – Hoffmann-La Roche, paragraph 90, and Michelin I, paragraphs 71, 73 – second sentence – and 85 (both cited in footnote 19). Similarly in Suiker Unie (cited in footnote 25), paragraph 526. 48 – See Michelin I (cited in footnote 19), paragraphs 70 to 86. 49 – On the significance of the duration of the reference period, see the observations on the first part of the fourth ground of appeal in paragraphs 94 to 98 of this Opinion. 50 – Suiker Unie (cited in footnote 25), paragraph 527, and Hoffmann-La Roche (cited in footnote 19), paragraph 90, last sentence. 51 – See in particular paragraphs 10 and 15 to 17 of the contested judgment, reproduced in points 9 and 10 of this Opinion. 52 – See also Michelin I (cited in footnote 19), paragraph 81. 53 – See point 11 of this Opinion, where the corresponding findings of the Commission, to which the Court of First Instance also refers, are reproduced. 54 – Paragraphs 272 and 273 of the contested judgment. 55 – Hoffmann-La Roche (cited in footnote 19), paragraph 41, and Compagnie Maritime Belge Transports (cited in footnote 21), paragraph 132. 56 – See also Michelin I (cited in footnote 19), paragraph 82. 57 – Paragraphs 276 and 277 of the contested judgment. 58 – Case C-37/03 P BioID v OHIM [2005] ECR I-0000, paragraphs 43 and 53; Joined Cases C‑204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission (Cement) [2004] ECR I-123, paragraphs 47 to 49. 59 – Hoffmann-La Roche, paragraph 90, and Michelin I, paragraph 85 (cited in footnote 19). 60 – Suiker Unie (cited in footnote 25), paragraph 518, Hoffmann-La Roche (cited in footnote 19), paragraphs 90 and 100, and Michelin I (cited in footnote 19), paragraphs 71 and 72. See also paragraph 244 et seq. of the contested judgment (cited in footnote 3). 61 – Cited in footnote 19, paragraph 90. 62 – Hoffmann-La Roche (cited in footnote 19), paragraph 100. 63 – Similar considerations on the account to be taken of efficiency advantages can be found, in the area of merger control, in recital 29 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation; OJ 2004 L 24, p. 1) and in paragraphs 76 to 88 of the Commission’s Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5), with further reference to Article 81(3) EC in paragraphs 135 and 141, last sentence, of the ‘Commission notice – Guidelines on Vertical Restraints’ (OJ 2000 C 291, p. 1). 64 – It need not be determined here whether quantity rebates which are based on objective quantities the same for all purchasers can have abusive effects in individual cases on account of the criteria and circumstances of their being granted. See Michelin II (cited in footnote 25) and Portugal v Commission (cited in footnote 25), paragraph 50 et seq. 65 – See paragraphs 279 to 291 of the contested judgment. 66 – See point 55 of this Opinion and the case-law cited in footnote 58. That obviously applies only where there has been no falsification of facts or evidence, which has, however, not been argued in this case. 67 – Paragraph 293 of the contested judgment. 68 – Paragraph 294 of the contested judgment. 69 – Paragraph 293 of the contested judgment. 70 – Paragraph 295 of the contested judgment. 71 – Continental Can (cited in footnote 31), paragraph 26, and Hoffmann-La Roche, paragraphs 91, 123 and 125, Michelin I, paragraph 70, and L’Oréal, paragraph 27 (all cited in footnote 19). 72 – See to that effect ContinentalCan (cited in footnote 31), paragraph 26, and Hoffmann-La Roche (cited in footnote 19), paragraph 125. 73 – Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 25. 74 – Michelin I (cited in footnote 19), paragraph 57. 75 – Paragraph 85 of the notice of appeal. 76 – Suiker Unie (cited in footnote 25), paragraph 526, Hoffmann-La Roche (cited in footnote 19), paragraph 90, and Michelin I (cited in footnote 19), paragraph 73, second sentence, and paragraph 85, first sentence. On the criterion of likelihood, see also Case C-7/97 Bronner [1998] ECR I-7791, paragraph 38. 77 – As already stated, however, there is no abuse if there is an objective economic justification for the conduct of the dominant undertaking (see points 56 to 60 of this Opinion). 78 – See points 45 and 46 of this Opinion. 79 – See the judgment in AKZO (cited in footnote 19), paragraph 163, in which the Court of Justice saw the absence of any significant influence on the affected parties’ respective market shares as a reason to reduce the amount of the fine imposed by the Commission. 80 – Paragraph 293 of the contested judgment. The full sentence reads: ‘It is sufficient in that respect to demonstrate that the abusive conduct of the undertaking in a dominant position tends to restrict competition, or, in other words, that the conduct is capable of having, or likely to have, such an effect.’ The French version reads: ‘Il suffit à cet égard de démontrer que le comportement abusif de l'entreprise en position dominante tend à restreindre la concurrence ou, en d’autres termes, que le comportement est de nature ou susceptible d'avoir un tel effet.’ 81 – For example, in Michelin I (cited in footnote 19), paragraph 73, second sentence, the criterion in English was ‘… whether the discount tends to remove or restrict …’ and in the authentic language of the case, French ‘… si le rabais tend … à enlever … ou à restreindre …’; the French expression ‘tend à …’ was also used in Hoffmann-La Roche (cited in footnote 19), paragraph 90; emphasis added. 82 – Paragraphs 294 to 298 of the contested judgment. 83 – See point 55 of this Opinion and the case-law cited in footnote 58. 84 – Case C-499/03 P Biegi Nahrungsmittel and Commonfood v Commission [2005] ECR I-1751, paragraph 41; Joined Cases C-2/01 P and C-3/01 P BAI and Commission v Bayer [2004] ECR I-23, paragraph 47. 85 – Paragraph 298 of the contested judgment. 86 – See point 68 of this Opinion. 87 – Continental Can (cited in footnote 31), paragraph 26, and Hoffmann-La Roche (cited in footnote 19), paragraph 125. Contrary to what BA argues, I do not think that Advocate General Jacobs expresses a view that is any different in his Opinion in Case C-7/97 Bronner [1998] ECR I‑7791, point 58. He merely states there that ‘the primary purpose of Article [82] is to prevent distortion of competition – and in particular to safeguard the interests of consumers –’, and thus also appears to take the view that Article 82 EC protects competition as an institution, thereby also indirectly safeguarding the interests of consumers. 88 – See point 35 of this Opinion and the case-law cited in footnote 31. 89 – See the case-law cited in footnote 32. 90 – See to that effect Suiker Unie (cited in footnote 25), paragraph 526, where the Court of Justice stated that a rebate scheme was ‘likely to limit markets to the prejudice of consumers within the meaning of Article [82](b), because it gave other producers and especially those having their places of business in other Member States no chance or restricted their opportunities of competing with [the product] sold by [the dominant undertaking]’. 91 – That is made particularly clear in paragraphs 296 and 311 of the contested judgment. (The Court of First Instance was also right to hold that BA’s commission schemes were likely in any case to have an exclusionary effect and thus adversely affect competition; see my observations on the first and second grounds of appeal in paragraphs 35 et seq. and 67 et seq. of this Opinion.) 92 – To that effect see also Michelin I (cited in footnote 19), paragraph 81, in which the Court draws attention to the ‘relatively long reference period’ of the target rebates (one year). 93 – That uncertainty can be increased further by the lack of transparency of the rebate or bonus system (Michelin I (cited in footnote 19), paragraph 83). 94 – See in particular point 45 of this Opinion. 95 – See paragraph 271 et seq. of the contested judgment. 96 – See the presentation of the facts in paragraphs 8 to 11 of the contested judgment on the one hand and in paragraph 15 of that judgment on the other. 97 – Paragraphs 272 and 273 of the contested judgment. 98 – Paragraphs 276 to 278 of the contested judgment. 99 – See point 55 of this Opinion and the case-law cited in footnote 58. That naturally applies only in the absence of any distortion of the facts or evidence, which has, however, not been alleged in this case. 100 – Paragraph 272 of the contested judgment. 101 – Paragraph 240 of the contested judgment. 102 – Paragraph 238 of the contested judgment. 103 – Paragraphs 235 and 236 of the contested judgment. 104 – The need for such an assessment of the circumstances of the individual case is emphasised not least in Michelin I (cited in footnote 19), paragraph 87 et seq. 105 – See point 55 of this Opinion and the case-law cited in footnote 58. That naturally applies only in the absence of any distortion of the facts or evidence, which has, however, not been alleged in this case. 106 – Consistent case-law; see for example Case C-434/02 Arnold André [2004] ECR I-11825, paragraph 68; Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 70; Case C‑110/03 Belgium v Commission [2005] ECR I-2801, paragraph 71; Case C‑403/03 Schempp [2005] ECR I-0000, paragraph 28; and Joined Cases C-453/03, C‑11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-0000, paragraph 63. 107 – Michelin I (cited in footnote 19), paragraph 90. 108 – A differentiated analysis of quantity rebates can be found, for example, in Portugal v Commission (cited in footnote 25), paragraph 50 et seq. 109 – See my observations on the first ground of appeal in points 44 to 62 of this Opinion. 110 – To that effect see also Hoffmann-La Roche (cited in footnote 19), paragraph 90, where the Court held in relation to fidelity rebates: ‘Furthermore the effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply’. Michelin I (cited in footnote 19), paragraph 87 et seq., does not contradict that view. In that case, the Court of Justice saw discrimination as unproven, because the Commission’s findings on the method of functioning of Michelin’s rebate system were subsequently found to be incomplete, so that the possibility could not be excluded that the Commission thereby overlooked legitimate business considerations of Michelin (see paragraphs 89 and 90 of the judgment). 111 – Hoffmann-La Roche, paragraph 91, and AKZO, paragraph 69 (cited in footnote 19). 112 – In Michelin I (cited in footnote 19), paragraph 87 et seq., no finding of discrimination was made, so that the problem of whether a disadvantage was suffered in competition did not arise. Portugal v Commission (cited in footnote 25), paragraph 50 et seq., and Case C-82/01 P Aéroports de Paris v Commission [2002] ECR I-9297, paragraph 114 et seq., deal only with the question of discrimination; at any rate it is not clear whether the question of disadvantage to trading partners was at issue in the respective proceedings. In Suiker Unie (cited in footnote 25), paragraphs 522 to 525, brief consideration is given to the competitive relationship between the customers discriminated against. United Brands (cited in footnote 22), paragraphs 232 to 234, and Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 19, suggest that the Court of Justice regards a summary examination of the effects of the conduct of dominant undertakings on the competitive position of their trading partners as necessary. 113 – See Suiker Unie (cited in footnote 25), paragraphs 524 and 525. 114 – See my observations on the second ground of appeal in paragraphs 67 to 78 of this Opinion. 115 – Paragraph 237 of the contested judgment. 116 – Paragraphs 237 and 238 of the contested judgment. 117 – See, on the one hand, paragraph 23 of the contested judgment, reproduced in point 11 of this Opinion and, on the other, paragraphs 272 and 273 of the contested judgment. 118 – Paragraph 238 of the contested judgment. 119 – See in particular United Brands (cited in footnote 22), paragraphs 232 to 234, Merci Convenzionali Porto di Genova (cited in footnote 112), paragraph 19, and Portugal v Commission (cited in footnote 25), paragraph 50 et seq. 120 – Michelin I (cited in footnote 19), paragraphs 86 and 91.