Case C‑525/16

MEO — Serviços de Comunicações e Multimédia SA

v

Autoridade da Concorrência

(Request for a preliminary ruling from the Tribunal da Concorrência, Regulação e Supervisão)

(Reference for a preliminary ruling — Competition — Abuse of dominant position — Subparagraph (c) of the second paragraph of Article 102 TFEU — Concept of ‘competitive disadvantage’ — Discriminatory prices on the downstream market — Cooperative for the management of rights relating to copyright — Royalty payable by domestic entities which provide a paid television signal transmission service and television content)

Summary — Judgment of the Court (Second Chamber), 19 April 2018

Dominant position — Abuse — Concept of ‘competitive disadvantage’ — Discriminatory prices charged by an undertaking in a dominant position to commercial partners on the downstream market — Potentially distortive effect on competition between those partners — Need to analyse all the relevant circumstances of the case — No need to prove an actual, quantifiable deterioration in the competitive position

(Art. 102(2)(c) TFEU)

The concept of ‘competitive disadvantage’, for the purposes of subparagraph (c) of the second paragraph of Article 102 TFEU, must be interpreted to the effect that, where a dominant undertaking applies discriminatory prices to trade partners on the downstream market, it covers a situation in which that behaviour is capable of distorting competition between those trade partners. A finding of such a ‘competitive disadvantage’ does not require proof of actual quantifiable deterioration in the competitive situation, but must be based on an analysis of all the relevant circumstances of the case leading to the conclusion that that behaviour has an effect on the costs, profits or any other relevant interest of one or more of those partners, so that that conduct is such as to affect that situation.

In order to establish whether the price discrimination on the part of an undertaking in a dominant position vis-à-vis its trade partners tends to distort competition on the downstream market, as the Advocate General submitted, in essence, in point 63 of his Opinion, the mere presence of an immediate disadvantage affecting operators who were charged more, compared with the tariffs applied to their competitors for an equivalent service, does not, however, mean that competition is distorted or is capable of being distorted.

It is only if the behaviour of the undertaking in a dominant position tends, having regard to the whole of the circumstances of the case, to lead to a distortion of competition between those business partners that the discrimination between trade partners which are in a competitive relationship may be regarded as abusive. In such a situation, it cannot, however, be required in addition that proof be adduced of an actual, quantifiable deterioration in the competitive position of the business partners taken individually (judgment of 15 March 2007, British Airways v Commission, C‑95/04 P, EU:C:2007:166, paragraph 145). Therefore, as the Advocate General submitted in point 86 of his Opinion, it is necessary to examine all the relevant circumstances in order to determine whether price discrimination produces or is capable of producing a competitive disadvantage, for the purposes of subparagraph (c) of the second paragraph of Article 102 TFEU.

With regard to the issue whether, for the application of subparagraph (c) of the second paragraph of Article 102 TFEU, it is necessary to take into account the seriousness of a possible competitive disadvantage, it must be pointed out that fixing an appreciability (de minimis) threshold for the purposes of determining whether there is an abuse of a dominant position is not justified (see, to that effect, judgment of 6 October 2015, Post Danmark, C‑23/14, EU:C:2015:651, paragraph 73). However, in order for it to be capable of creating a competitive disadvantage, the price discrimination referred to in subparagraph (c) of the second paragraph of Article 102 TFEU must affect the interests of the operator which was charged higher tariffs compared with its competitors.

(see paras 26-30, 37, operative part)