Judgment of the Court of 22 September 2016 in Case E-29/15 — Sorpa bs. v The Competition Authority (Abuse of a dominant position — Notion of undertaking — Cooperative agencies established by municipalities — Waste management — Services of general economic interest — Dissimilar conditions applied to equivalent transactions with other trading parties — Price discrimination)
Date: 2016-09-22
Institutions: EFTA Court
Subjects: Iceland, competition policy, control of restrictive practices, cooperative, discriminatory price, dominant position, municipality, services of general interest, waste management








C_2017123EN.01000701.xml










20.4.2017   


EN


Official Journal of the European Union


C 123/7





JUDGMENT OF THE COURT
of 22 September 2016
in Case E-29/15
Sorpa bs. v The Competition Authority
(Abuse of a dominant position — Notion of undertaking — Cooperative agencies established by municipalities — Waste management — Services of general economic interest — Dissimilar conditions applied to equivalent transactions with other trading parties — Price discrimination)
(2017/C 123/08)
In Case E-29/15, Sorpa bs. v The Competition Authority — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Iceland (Hæstiréttur Íslands) concerning the interpretation of the EEA Agreement, and in particular Article 54 thereof, the Court, composed of Carl Baudenbacher, President and Judge Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 22 September 2016, the operative part of which is as follows:






1.


A municipality may constitute an undertaking within the meaning of Article 54 EEA when it engages in an economic activity, which consists in the offering of goods or services on the market. In order to determine whether an activity such as waste management is economic, account must be taken of the existence of competition with private entities. In that regard, the fact that the fee received for the provision of waste management services cannot exceed the costs incurred must be balanced against the existence of competition on the market.










2.


Waste management may constitute a service of general economic interest within the meaning of Article 59(2) EEA. It is for the referring court to determine whether the application of Article 54 EEA would make it impossible for the municipalities to provide the waste management services they have been entrusted with, or to provide them under economically acceptable conditions.










3.


In order to determine whether a public entity constitutes an undertaking within the meaning of the EEA competition rules when it provides waste management services, it is irrelevant whether that entity is a municipality or a cooperative agency entered into by several municipalities.










4.


Article 54 EEA does not apply to anti-competitive conduct which is required of undertakings by national legislation, or if national legislation creates a legal framework which itself eliminates any possibility of competitive activity on their part. However, Article 54 EEA may apply if national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition.










5.


Should an EEA State, by national legislation, grant public entities a derogation from the application of the EEA competition rules, for instance by granting them special or exclusive rights, it must do so in accordance with the EEA competition rules, in particular with Article 59(1) EEA.










6.


The owners of a municipal cooperative may be regarded as the trading parties of that cooperative within the meaning of Article 54(2)(c) EEA, unless they form one undertaking with that cooperative.










7.


By granting its owners a discount which it denies to its other customers, a dominant undertaking places those other customers at a competitive disadvantage within the meaning of Article 54(2)(c) EEA, provided that they compete with the dominant undertaking’s owners on a market upstream or downstream of the dominated market.