Case C-96/04: Referencefor a preliminary ruling by the Amtsgericht Niebüll by order of that Courtof 2 June 2003 in the family-law case of StandesamtNiebüll (relating to the determination of the birth name of the German childLeonhard Matthias)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: EU law, discrimination on the basis of nationality, equal treatment, interpretation of the law, surname

30.4.2004

EN

Official Journal of the European Union

C 106/23

This reasoning is defective. First, competition law requires the
Court
to examine the actual or likely effects of allegedly
abusive conduct. This was certainly approproiate in this case,
since BA's conduct had lasted sufficiently long to assess its
effects. Second, there was clear evidence in the present case
that BA's practices had no material effect. BA does not suggest
that actual effects need to be demonstrated in every case. But it
is clearly a different matter to suggest, as the Court of First
Instance does, that clear evidence pointing to a lack of any effect
can be disregarded. The Court of First Instance's findings in this
regard would, if accepted, mean that incentive practices such as
those at issue would be per se abusive,
irrespective of their
actual or likely effects. This is not the law under Article 82 EC,
which requres an examination of
in
order to assess whether rivals' opportunities were materially
limited.

‘all the circumstances’

E. The Court of First Instance Misapplied Article 82(c) EC In
Relation To The Discriminatory Effect Of BA's Commis-
sions

The Court of First Instance misapplied Article 82(c) EC in
finding that BA's commissions discriminated between travel
agents. Article 82(c) EC does not require that all customers
benefit from the same prices and terms and conditions.
It
proscribes differences only if: (i) the compared transactions are
equivalent; (ii) the conditions applied to the transactions are
different; and (iii) one trading party suffers a competitive disad-
vantage vis-à-vis the other trading party as a result of such
differences. Instead of applying the express wording of Article
82(c) EC, the Court of First Instance simply assumed that the
mere fact that two agents receive different rates of commission
‘naturally’ had a material impact on their abililty to compete
with one another.

C. The Court of First Instance Erred In Law By Failing To
Consider Whether There Was ‘Prejudice To Consumers’
Under Article 82(b) EC

(1) OJ C 20, 22.01.2000, p. 21.

Conduct which ‘limits’ the market of competitors of a domi-
nant company is unlawful under Article 82(b) EC only if it
‘prejudice to consumers’. Article 82(b) EC clearly
causes
protects competition and consumers, not competitors. The
Court of First Instance erred in law by its failure to consider
whether BA's commissions for successful travel agents harmed
consumers. The judgment under appeal makes no analysis of
this requirement, but only addresses the situation of BA's
competitors.

Reference for a preliminary ruling by the Amtsgericht
Niebüll by order of that Court of 2 June 2003 in the
family-law case of Standesamt Niebüll
(relating to the
determination of the birth name of the German child
Leonhard Matthias)

(Case C-96/04)

(2004/C 106/41)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Amtsgericht Niebüll
(Niebüll Local Court) of 2 June 2003, received at the Court
Registry on 26 February 2004, for a preliminary ruling in the
family-law case of Standesamt Niebüll (relating to the determin-
the German child Leonhard
ation of
Matthias) on the following questions:

the birth name of

In light of the prohibition on discrimination set out in Article
12 EC and having regard to the right to the freedom of move-
ment for every citizen of the Union laid down in Article 18 EC,
is the German provision on the conflict of laws contained in
Article 10 of the EGBGB valid, in so far as it provides that the
right to bear a name is governed by nationality alone?

D. Even If BA's Commissions Had In Principle Been Capable of
‘Limiting’ Rivals' Markets, The Court of First Instance Erred
In Law By Failing to Analyse These Effects

BA's fourth ground of appeal needs to be considered only if,
contrary to its first, second and third grounds of appeal,
its
incentives schemes were in principle capable of limiting rivals'
markets to the prejudice of consumers, contrary to Article
82(b) EC. The judgment under appeal fails to analyse or quan-
tify the extent
to which BA's commissions limited rivals'
markets in two respects: (i) the Court of First Instance wrongly
treated the MAs and PRS as having the same effect, since each
had different terms and conditions and was in operation for
different periods, and at least one of them (the PRS) could not
have been exclusionary on any basis;
(ii) the Court of First
Instance failed to examine ‘all the circumstances’ to assess how
BA's rivals were affected by its commission schemes.