Judgment — ECLI:EU:T:1997:155
Date: 1997-10-21
Language of the case: German
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Transport;Dominant position
Concepts: Examples of abuse;Determining the amount of the fine;General;Competition rules;Geographical market;Hearing of persons concerned and of third parties / Access to the file;Product or products constituting a market
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
1. Competition — Transport — Competition rules — Rail transport — ReguUtion No 1017/68 
— Joint fixing of prices — Prohibition — Legal exception provided for in Article 3(1 )(c) of 
ReguUtion No 1017/68 — Narrowly construed — Inclusive rates — Competitive rates — 
Meaning 
(EC Treaty, Art. 85(l)(a); Council Reguhtion No 1017/68, Arts 2(a) and 3(l)(c); Council 
Decision 82/529, Art. 4; Council Recommendation 84/646, Art. 4) 
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SUMMARY — CASE T-229/94 
2. Competition — Dominant position — Relevant market — Definition — Criteria — Rail ser­
vices sub-market and rail transport market in general 
(EC Treaty, Art. 86) 
3. Competition — Dominant position — Relevant market — Geographical delimitation — Cri­
teria 
(EC Treaty, Art. 86) 
4. Competition — Dominant position — Abuse — Discriminatory pricing 
(EC Treaty, Art. 86) 
5. Competition — Community rules — Concurrent application of Articles 85 and 86 of the 
Treaty — Whether permissible 
(EC Treaty, Arts 85 and 86) 
6. Competition — Administrative procedure — Access to the file — Request made after adop­
tion of the Commission's final decision — Refusal — Effect on the legality of the decision — 
None 
7. Acts of the institutions — Unalterable after adoption — Amendments subject to observance of 
the rules on competence and procedure 
8. Competition — Transport — Competition rules — Rail transport — Fines — Amount — 
Determination — Criteria — Review by the Court 
(Coundl ReguUtion No 1017/68, Arts 8, 22 and 24) 
1. An agreement between the national rail 
undertakings of three Member States the 
purpose of which is to set up a common 
administration for the fixing of prices and 
tariffs for the carriage by rail of maritime 
containers to or from one of those States 
via the ports of those States, is incompat­
ible with the common market. 
An agreement establishing a common 
system for fixing prices falls within the 
scope of Article 85(1 )(a) of the Treaty and 
of Article 2(a) of Regulation N o 1017/68 
applying rules of competition to trans­
port by rail, road and inland waterway, 
irrespective of the extent to which the 
provisions of the agreement have in 
fact been observed. The reason for this 
is that the joint fixing of prices restricts 
competition, in particular by enabling 
every participant to predict with a 
reasonabledegree of certainty what the 
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DEUTSCHE BAHN v COMMISSION 
pricing policy pursued by its competitors 
will be. 
Such an agreement is not covered by the 
legal exception provided for in 
Article 3(l)(c) of Regulation N o 1017/68 
which authorizes 'agreements, decisions 
or concerted practices the object and 
effect of which is to apply technical 
improvements or to achieve technical 
co-operation by means of ... the organiza­
tion and execution of ... transport opera­
tions, and the fixing and application of 
inclusive rates and conditions for such 
operations, including special competitive 
rates'. 
The introduction of a legal exception for 
agreements of a purely technical nature 
cannot amount to an authorization, on 
the part of the Community legislature, 
allowing agreements to be concluded 
whose purpose is the joint fixing of 
prices, if it is not to render nugatory 
Article 2(a) of Regulation N o 1017/68. 
Furthermore, since the independent 
determination by each economic operator 
of his commercial policy and in particular 
of his pricing policy corresponds to the 
concept inherent in the competition pro­
visions of the Treaty, that exception and 
in particular the words 'inclusive rates' 
and 'competitive rates', must be con­
strued with caution. The term 'inclusive 
rate' must be understood to mean the 
'whole-journey' price, including the vari­
ous national parts of a transnational jour­
ney, and the term 'competitive rate' must 
be understood as allowing the various 
undertakings operating on a single tran­
snational route to fix inclusive rates not 
only by adding together the tariffs for 
each of them, but also by incorporating 
common adjustments to ensure the com­
petitiveness of the transport in question 
in relation to other modes of transport, 
without however altogether eliminating 
the independence of each undertaking 
with regard to the fixing of its own tariffs 
in accordance with its competitive inter­
ests. 
That interpretation of Article 3(1 )(c) of 
Regulation N o 1017/68 does not, more­
over, conflict with Article 4 of Council 
Decision 82/529 on the fixing of rates for 
the international carriage of goods by rail, 
or with Article 4 of Council Recommen­
dation 84/646, addressed to the national 
rail undertakings of the Member States on 
strengthening their cooperation in inter­
national passenger and goods transport; 
on the contrary, it is in conformity with 
them. 
2. In order to be considered, for the pur­
poses of Article 86 of the Treaty, the sub­
ject of a sufficiently distinct market, it 
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SUMMARY — CASE T-229/94 
must be possible to distinguish the service 
or the good in question by virtue of par­
ticular characteristics that so differentiate 
it from other services or other goods that 
it is only to a small degree interchange­
able with those alternatives and affected 
by competition from them. In that con­
text, the degree of interchangeability 
between products must be assessed in 
terms of their objective characteristics, as 
well as the structure of supply and 
demand on the market, and competitive 
conditions. 
In that regard, the rail services market 
constitutes a sub-market distinct from the 
rail transport market in general. It offers a 
specific range of services, in particular the 
provision of locomotives, traction and 
access to the railway infrastructure which, 
while provided according to the demands 
of the railway transport operators, is in 
no way interchangeable or in competition 
with their services. The distinct character 
of railway services also derives from the 
demand and supply factors that are spe­
cific to those services. It is not possible 
for transport operators to provide their 
services if they do not have railway ser­
vices available to them. 
Where, furthermore, the services covered 
by the sub-market are the subject of a 
statutory monopoly, placing those seek­
ing the services in a position of economic 
dependence on the supplier, the existence 
of a dominant position on a distinct mar­
ket cannot be denied, even if the services 
provided under a monopoly are linked to 
a product which is itself in competition 
with other products. 
3. The definition of the geographical market 
for the purposes of applying Article 86 of 
the Treaty does not require the objective 
conditions of competition between trad­
ers to be perfectly homogeneous. It is 
sufficient if they are 'similar' or 'suffi-
ciendy homogeneous' and, accordingly, 
only areas in which the objective condi­
tions of competition are 'heterogenous' 
may not be considered to constitute a 
uniform market. 
Moreover, a Member State may consti­
tute, in itself, a substantial part of the 
common market on which an undertak­
ing may hold a dominant position, in par­
ticular where it enjoys a statutory 
monopoly on that territory. 
4. By prohibiting abuse of a dominant pos­
ition, Article 86 of the Treaty seeks to 
prohibit a dominant undertaking from 
strengthening its position by using meth­
ods other than those which come within 
the scope of competition on the basis of 
quality. Thus, an undertaking may not 
apply artificial price differences such as to 
place its customers at a disadvantage and 
to distort competition. 
5. The existence of an abuse of a dominant 
position cannot be ruled out by the fact 
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DEUTSCHE BAHN v COMMISSION 
that the undertaking which holds the 
dominant position has formally entered 
into an agreement the object of which is 
the joint fixing of tariffs and which thus 
falls within the scope of the prohibition 
of restrictive agreements. The existence of 
such an agreement does not preclude the 
possibility that one of the undertakings 
bound by the agreement might unilater­
ally impose discriminatory tariffs. 
6. The legality of a decision taken by the 
Commission against an undertaking in a 
competition case cannot be affected by 
the Commission's refusal to grant further 
access to the file during the period pre­
scribed for bringing an action, where the 
request to that effect was made after 
adoption and notification of the decision 
and thus constitutes an element which 
post-dates it. 
7. The principle of legal certainty aims to 
ensure that situations and legal relation­
ships governed by Community law 
remain foreseeable. To that end, it is 
essential that the Community institutions 
observe the principle that they may not 
alter measures which they have adopted 
and which affect the legal and factual situ­
ation of persons, so that they may amend 
those acts only in accordance with the 
rules on competence and procedure. 
8. When applying the rules of competition 
to rail undertakings, the fact that the 
Commission finds that Article 86 of the 
Treaty has been infringed rather than 
Article 8 of Regulation N o 1017/68 
applying rules of competition to trans­
port by rail, road and inland waterway 
does not prevent it from imposing a fine 
under Article 22 of that regulation, since 
the relevant provisions of Article 8, 
referred to above, have the same wording 
and the same scope as those of Article 86 
of the Treaty. 
So far as concerns the taking into account 
of an undertaking's turnover when setting 
the fine to be imposed upon it for 
infringement of the rules on competition, 
it is permissible, in the context of 
Article 22 of Regulation 1017/68, to have 
regard both to the total turnover of the 
undertaking and to the turnover 
accounted for by the services in respect of 
which the infringement was committed. 
As regards the setting of the amount of 
the fine within the quantitative limits 
provided for in that provision, since fines 
constitute an instrument of the Commis­
sion's competition policy, that institution 
must be allowed a margin of discretion 
when fixing their amount, in order that it 
may direct the conduct of undertakings 
towards compliance with the competition 
rules. 
Nevertheless, it is for the Community 
judicature, in the exercise of its unlimited 
jurisdiction pursuant to Article 24 of 
Regulation N o 1017/68, to verify whether 
the amount of the fine imposed is in pro­
portion to the duration of the infringe­
ment and to the other factors capable of 
affecting the assessment of the gravity of 
the infringement, such as the influence 
which the undertaking was able to exert 
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SUMMARY — CASE T-229/94 
on the market, the profit which it was 
able to derive from those practices, the 
volume and the value of the services con­
cerned and the threat that the infringe­
ment poses to the objectives of the Com­
munity. 
In that regard, the unprecedented nature 
of a decision imposing a fine in the rail 
transport sector cannot be pleaded as a 
ground for a reduction of the fine, pro­
vided that the gravity of the infringement 
of the competition rules is undisputed. 
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