Keywords

Summary



Keywords

1. Competition – Dominant position – Abuse – Concept

(Art. 82(2)(a) EC)

2. Competition – Dominant position – Abuse – Concept

(Art. 82(2)(a) EC)

3. Competition – Undertakings entrusted with the operation of services of general economic interest

(Art. 86(2) EC)

Summary

1. The concept of 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 weakened and which, through recourse to methods different from those which condition 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.

In particular, it is apparent from point (a) of the second paragraph of Article 82 EC that such abusive practice may consist, inter alia, of directly or indirectly imposing unfair prices or other unfair trading conditions. Thus, an undertaking abuses its dominant position where it charges for its services fees which are disproportionate to the economic value of the service provided.

Similarly, an undertaking in a dominant position may commit an abuse by obstructing its competitors through binding its customers in law or in fact to its services and thereby prevent them from using competing suppliers.

(see paras 120-122)

2. Abuse of a dominant position is constituted by conduct of a nationwide undertaking in Germany, which manages a collection and recovery system for sales packaging, consisting in requiring undertakings which use its system to pay a fee for all sales packaging carrying its logo and put into circulation in Germany, where those undertakings show that they do not use that system for some or all of that packaging. As long as the users of the logo in question prove that the quantities of packaging for which they do not use the system have actually been taken back and recovered by one or more other collective or individual systems which they use, that undertaking cannot claim that it is disproportionate to ask it not to be paid for a service which it does not provide. That does not, however, exclude the possibility of that undertaking levying an adequate fee for merely using the mark where it is shown that the packaging bearing its logo has been taken back and recovered by another system, since the placing of the logo, which indicates to the consumer that he has the possibility of using the system offered by the undertaking, corresponds to a service, namely the making available of the system.

(see paras 148, 164, 181, 193, 195)

3. Assuming an undertaking which manages a system of collection and recovery of sales packaging is entrusted with the operation of services of general economic interest within the meaning of Article 86(2) EC, the fact that it cannot be remunerated for a service which has been shown to be provided by another system in no way leads to the conclusion that the carrying out, under economically acceptable conditions, of the take‑back and recovery service entrusted to the system is threatened.

(see paras 207-209)