Keywords

Summary



Keywords

1 Preliminary rulings - Reference to the Court - Need for a preliminary ruling and relevance of the questions raised - Assessment by the national court - Request for interpretation of a provision of Community competition law in a dispute concerning the application of national competition law - Whether permissible

(EC Treaty, Art. 177)

2 Competition - Dominant position - Abuse - Refusal of an undertaking in a dominant position to supply a rival undertaking with services indispensable to carrying on its business - Newspaper home-delivery scheme - Existence of other means of distribution - No abuse

(EC Treaty, Art. 86)

Summary

3 It is for the national courts alone which are seised of the case and are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where the questions put by national courts concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling.

Moreover, Article 177 of the Treaty, which is based on a clear separation of functions between national courts and the Court of Justice, does not allow the latter to review the reasons for which a reference is made. Consequently, a request from a national court may be rejected only if it is quite obvious that the interpretation of Community law or review of the validity of a rule of Community law sought by that court bears no relation to the actual facts of the case or to the subject-matter of the main action.

In those circumstances, the fact that a national court is dealing with a restrictive practices dispute by applying national competition law should not prevent it from making reference to the Court on the interpretation of Community law on the matter, and in particular on the interpretation of Article 86 of the Treaty in relation to that same situation, when it considers that a conflict between Community law and national law is capable of arising.

Indeed, it is not impossible for the same situation to fall within the scope of both Community and national competition law, even if they consider restrictive practices from different points of view.

In the context of such a reference, the circumstances concerning the applicability of Article 86 of the Treaty to the factual situation forming the subject-matter of the main proceedings fall within the scope of the assessment by the national court and are irrelevant for the purposes of verifying whether the questions referred to the Court are admissible.

4 The refusal by a press undertaking which holds a very large share of the daily newspaper market in a Member State and operates the only nationwide newspaper home-delivery scheme in that Member State to allow the publisher of a rival newspaper, which by reason of its small circulation is unable either alone or in cooperation with other publishers to set up and operate its own home-delivery scheme in economically reasonable conditions, to have access to that scheme for appropriate remuneration does not constitute an abuse of a dominant position within the meaning of Article 86 of the Treaty.

For the existence of an abuse within the meaning of that provision to be capable of being established in such circumstances, it would be necessary not only for that the refusal of the service comprised in home delivery to be likely to eliminate all competition in the daily newspaper market on the part of the person requesting the service and for such refusal to be incapable of being objectively justified, but also for the service in itself to be indispensable to carrying on that person's business, for lack of any actual or potential substitute for that home-delivery scheme.

That is not the case where, first, other methods of distributing daily newspapers, such as by post and through sale in shops and at kiosks, even though they may be less advantageous for the distribution of certain newspapers, exist and are used by the publishers of those daily newspapers and, secondly, there are no technical, legal or even economic obstacles capable of making it impossible, or even unreasonably difficult, for any other publisher of daily newspapers to establish, alone or in cooperation with other publishers, its own nationwide home-delivery scheme and use it to distribute its own daily newspapers.