Opinion of the Advocate General — ECLI:EU:C:2012:55
Date: 2012-02-02
Language of the case: English
Subject matter: Competition;Dominant position
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Austria;Germany;Netherlands;Sweden

summary of which was published in the Official Journal of the European Union (OJ 2008 C 219, p. 11). 4 – It should be borne in mind that in the context of the present Opinion I will only deal with those arguments which have been raised by the parties and which fulfil the strict limitations inherent to appeals and to the restricted review of the Court of Justice. See Article 256(1) TFEU and Article 58 of the Statute of the Court of Justice of the European Union. See also, for instance, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 29. 5 – See Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 91. 6 – Cf. recitals 349 to 357 to the contested decision (in relation to Tomra’s claims to economies of scale) in conjunction with paragraph 224 of the judgment under appeal. 7 – See, for instance, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraphs 52 to 54. Nor does the appeal argue that the General Court distorted the evidence. 8 – That is to say, the part of demand not tied by Tomra’s practices. 9 – See, in particular, paragraphs 90 to 95 of the application to the General Court and paragraphs 38 to 45 of the reply to the defence at first instance. 10 – See, for instance, Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 80 and the case‑law cited. 11 – Cited in footnote 5, paragraph 123. 12 – As the Commission pointed out, in 1999 more than 55% of the entire demand over the five countries was tied. Looking at individual markets, ‘non-contestable’ or ‘tied’ demand in 1999 and 2000 was between 80% and 90% in Norway and around 65% in the Netherlands (almost 60% in 2001). These facts were not contested before the General Court. Thus, in the countries and years considered to have contributed to the infringement, the contested decision found that the part of demand foreclosed was always significant, and in some years in each of these markets (usually the ‘key years’ of market growth), it was a very significant proportion (see, inter alia, recitals 392, and 160, 163, 183, 187, 218-219, and 290 to the contested decision). 13 – See paragraph 244 of the judgment under appeal. Cf., for example, recitals 163, 219 and 237 to the contested decision. 14 – As the Commission pointed out, that argument, despite the obvious technical implications of such a point, is unsupported by any of the numerous annexes to the application. Indeed, the table of annexes to the application does not show that any evidence was relied on in support of the argument to which such significance is now attached on appeal. 15 – In fact, in other parts of the application at first instance Tomra refer to ‘positive revenues’. It is only at paragraph 128 that the application states that an as-efficient competitor could be expected to earn the same level of profits. 16 – Indeed, the application’s main argument was that Tomra’s rebate schemes either did not require, or only rarely required, ‘negative prices’ for a competitor to secure sales. 17 – Cf. inter alia, paragraphs 105, 106, 108, 110, 111, 116, 117, 118, 122, 127, and 128 of the application. 18 – Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7). 19 – I agree on this point with Advocate General Kokott. See her Opinions in Case C‑95/04 P British Airways v Commission [2007] ECR I‑2331, point 28, and Case C‑109/10 P Solvay v Commission [2011] ECR I‑10329, point 21. 20 – That recital is in the subsection of the contested decision dealing with ‘Impact’ (recitals 159 to 166) within the section dealing with Tomra’s practices in ‘The Netherlands’ (recitals 134 to 166). 21 – The Commission points out that it is notable that recitals 314 to 329 do not refer at all to ‘negative prices’. Rather, they note the ‘suction effect’ of the rebates and, as mentioned in recital 354, there was no correlation between the rebate mechanism and Tomra’s costs (that is, the rebates were not based on any ‘economic service’). 22 – In recitals 314 to 329. See Hoffmann-La Roche v Commission, cited in footnote 5, and Case T‑203/01 Michelin v Commission(‘Michelin II’) [2003] ECR II‑4071. 23 – See Michelin II, cited in footnote 22, paragraph 60. 24 – See, for instance, Case COMP/39.451 – Velux, where the Commission’s investigation showed that Velux had designed a conditional rebate system without any anti-competitive foreclosure effects, that is, competitors were not foreclosed in a way that could cause likely harm to consumers. See also the Decision of the United Kingdom Office of Fair Trading (‘OFT’) under section 47 relating to Decision CA98/20/2002, BSkyB of 29 July 2003 (points 170 and 178 to 181), where the applicants had suggested that any rebate or discount offered by a dominant firm has a tendency to restrict a buyer’s choice as to his sources of supply and is, therefore, prima facie an abuse requiring objective justification. However, this approach was rejected by the OFT. See also Commission Decision C(2009) 3726 final of 13 May 2009 in Case COMP/C‑3/37.990 — Intel finding that it committed a single and continuous infringement of Article [102 TFEU] and Article 54 EEA by implementing a strategy aimed at foreclosing competitors from the market of x86 central processing units (see Case T‑286/09 Intel v Commission, pending before the General Court). 25 – Case C‑52/09 [2011] ECR I‑527. See also my Opinion in that case. 26 – Case C‑280/08 P [2010] ECR I‑9555. See also my Opinion in that case. 27 – That is, the closer a customer is to reaching a threshold entitling it to obtain (or keep) a rebate on all the units previously purchased, the more costly it is for a competitor to make any sales to this customer. In order to compete for units before the threshold, the competitor has to offer a much lower price. Thus, the rebate schemes deterred entry by making it structurally unattractive and more costly than it would be in the absence of the rebates, without a benefit for the customers since this strategy allowed Tomra to maintain a high average price and the rents of its monopoly. 28 – See, in particular, point 41 et seq. above and footnote 23. 29 – The Commission cites examples of rebates leading to negative prices for the customers Rimi Svenska, KB Exonen, Netto, Norgesgruppen, HakonGruppen and Rema 1000 (see paragraphs 68 and 69 of the rejoinder at first instance). 30 – That is, ‘that an “abuse” is an objective concept referring to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is already weakened and which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition’ (see, inter alia, Hoffmann-La Roche v Commission, cited in footnote 5, paragraph 91). 31 – That judgment (Michelin II, cited in footnote 22) refers to Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission (‘Michelin I’) [1983] ECR 3461, paragraph 73. 32 – See Michelin II, cited in footnote 22, paragraph 239, and British Airways v Commission, cited in footnote 19, paragraph 293. 33 – That the contracts designating Tomra as ‘preferred, main or primary supplier’ implied a commitment to exclusivity. 34 – See, for instance, Case C‑481/01 P(R) NDC Health v IMS Health and Commission [2002] ECR I‑3401, paragraph 88. See also Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp v Commission (‘Alloy surcharge’) [2005] ECR I‑6773, paragraphs 80 to 87, and 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 48 and 49. 35 – See Commission v Brazzelli Lualdi and Others, cited in footnote 4, paragraph 59. 36 – Reference is made to Hoffmann-La Roche v Commission, cited in footnote 5, paragraph 90. 37 – Emphasis added. Reference is made here, to that effect, to Case T‑65/98 Van den Bergh Foods v Commission [2003] ECR II‑4653, paragraphs 84 and 160. 38 – Reference is made to recitals 192 to 194 to the contested decision as well as footnote 415 therein. 39 – ‘Es wird einen Exklusivvertrag mit Tomra zu den Bedingungen vom 20.03.98 geben’ (There shall be an exclusive contract with Tomra subject to the conditions of 20.03.98). Annex B.1 to the defence, p. 6686 of the Commission’s file. 40 – Clause 4 reads: ‘Die Kooperationspartner sowie deren Regiebetriebe haben die Möglichkeit, jeweils einen Testmarkt innerhalb des Zeitraums mit Wettbewerbserzeugnissen auszustatten’ (The Cooperation Partner, as well as its outlets, have the possibility to have one test market each for competing products throughout this period of time). Application, Annex A‑21, p. 892. 41 – Indeed, this type of infringement had been the subject of several decisions and judgments in the past. Reference is made, inter alia, to: 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 v Commission, cited in footnote 5, paragraph 90 et seq.; Michelin I, cited in footnote 31, paragraph 62 et seq.; Case C‑163/99 Portugal v Commission [2001] ECR I‑26l3, paragraph 50 et seq.; British Airways v Commission, cited in footnote 19; 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 Irish Sugar v Commission [1999] ECR II‑2969, paragraphs 198, 201 and 213; Michelin II, cited in footnote 22, paragraph 53 et seq.; and Solvay v Commission, cited in footnote 19. 42 – See Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 205. See also, for instance, Case T‑52/02 SNCZ v Commission [2005] ECR II‑5005, paragraph 77. The Commission is free to change the weight that it gives to particular factors in its assessment of gravity: Case T‑347/94 Mayr-Melnhof v Commission [1998] ECR II‑1751, paragraph 368, and Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 132 (the fact that the Commission may have taken a less serious view in the past of the type of infringement at issue is irrelevant). 43 – Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1). 44 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 109. 45 – Case T‑49/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 53. 46 – See, to that effect, SNCZ v Commission, cited in footnote 42, paragraph 79, and Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraphs 187 to 189. 47 – See, inter alia, Dansk Rørindustri and Others v Commission, cited in footnote 42, paragraph 255. 48 – For illustration, as the Commission pointed out in relation to Tomra’s arguments that the fine represented 8% of Tomra’s turnover, it would appear that the final amount of the fine is equivalent to approximately 7.14% of Tomra’s turnover. Taking into account the duration of the infringement (that is five years, which was never contested), the fine amounted to approximately 1.6% of Tomra’s aggregate turnover during the period of infringement.