Judgment of the General Court of 13 December 2018 — Deutsche Telekom v Commission

(Case T-827/14) (1)

((Competition - Abuse of a dominant position - Slovak market for broadband telecommunications services - Access by third-party undertakings to the ‘local loop’ of the incumbent operator on that market - Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement - Single and continuous infringement - Definition of ‘abuse’ - Refusal to grant access - Margin squeeze - Calculation of margin squeeze - Equally efficient competitor test - Rights of defence - Imputation to a parent company of an infringement committed by its subsidiary - Decisive influence of the parent company over the subsidiary’s commercial policy - Actual exercise of such influence - Burden of proof - Calculation of the amount of the fine - 2006 Guidelines on the method of setting fines - Separate fine imposed solely on the parent company for repeated infringement and application of a multiplier for the purpose of deterrence))

(2019/C 82/34)

Language of the case: German

Parties

Applicant: Deutsche Telekom AG (Bonn, Germany) (represented by: K. Apel and D. Schroeder, lawyers)

Defendant: European Commission (represented by: M. Kellerbauer, L. Malferrari, C. Vollrath and L. Wildpanner, acting as Agents)

Intervener in support of the defendant: Slovanet, a.s. (Bratislava, Slovakia) (represented by: P. Tisaj, lawyer)

Re:

Application under Article 263 TFEU for annulment, in whole or in part, of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom), as rectified by Commission Decision C(2014) 10119 final of 16 December 2014 and by Commission Decision C(2015) 2484 final of 17 April 2015, in so far as that decision concerns the applicant, and, in the alternative, for annulment or reduction of the amount of the fines imposed on the applicant by that decision.

Operative part of the judgment

The Court:

1. Annuls Article 1(2)(d) of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom) in so far as it declares that, over the course of the period between 12 August and 31 December 2005, Deutsche Telekom AG imposed unfair tariffs which did not allow an equally efficient operator relying on wholesale access to its unbundled local loops to replicate the retail broadband services offered by it without incurring a loss;

2. Annuls Article 2 of Decision C(2014) 7465 final in so far as it fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 838 000 and the amount of the fine imposed on Deutsche Telekom alone at EUR 31 070 000;

3. Fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 061 963 and the amount of the fine imposed on Deutsche Telekom alone at EUR 19 030 981;

4. Dismisses the action as to the remainder;

5. Orders Deutsche Telekom to pay four fifths of its own costs, four fifths of the costs of the European Commission and four fifths of the costs of Slovanet, a.s.;

6. Orders the Commission to pay one fifth of its own costs and one fifth of the costs incurred by Deutsche Telekom;

7. Orders Slovanet to bear one fifth of its own costs.

(1) OJ C 96, 23.3.2015.