Opinion of the Advocate General — ECLI:EU:C:2008:520
Date: 2008-09-25
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Dominant position
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: France

Summary of the Judgment 1. Procedure – Statement of reasons for judgments – Scope (Statute of the Court of Justice, Art. 36) 2. Appeals – Grounds – Impossibility of relying on pleas which were withdrawn at first instance or of a finding of inadmissibility which was not itself contested (Statute of the Court of Justice, Art. 58) 3. Competition – Dominant position – Abuse – Practice of charging prices lower than a certain level of costs (Art. 82 EC) 1. The requirement that the Court of First Instance give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the applicant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence. (see paras 30, 117) 2. In an appeal, the appellant may not rely on pleas in law declared inadmissible by that Court, where the finding that they are inadmissible is not contested. (see para. 93) 3. The possibility of recoupment of losses suffered by the application, by an undertaking in a dominant position, of prices lower than a certain level of costs does not constitute a necessary precondition to establishing that such a pricing policy is abusive. That does not preclude the Commission from finding such a possibility of recoupment of losses to be a relevant factor in assessing whether or not the practice concerned is abusive, in that it may, for example where prices lower than average variable costs are applied, assist in excluding economic justifications other than the elimination of a competitor, or, where prices below average total costs but above average variable costs are applied, assist in establishing that a plan to eliminate a competitor exists. Moreover, the lack of any possibility of recoupment of losses is not sufficient to prevent the undertaking concerned reinforcing its dominant position, in particular, following the withdrawal from the market of one or a number of its competitors, so that the degree of competition existing on the market, already weakened precisely because of the presence of the undertaking concerned, is further reduced and customers suffer loss as a result of the limitation of the choices available to them. (see paras 110-112)