4.7.2022
EN
Official Journal of the European Union
C 257/5
3.
Article 102 TFEU must be interpreted as meaning that the existence of exclusionary abuse by an undertaking in a dominant position must be assessed on the basis of whether that practice is capable of having anticompetitive effects.
A competition authority is not required to establish the intention of the undertaking in question to foreclose its competitors by methods or by making use of resources other than those governing competition on the merits.
The evidence of such intention is nevertheless a factual circumstance which is capable of being taken into account for the purposes of establishing abuse of a dominant position. 4.
Article 102 TFEU must be interpreted as meaning that a practice which is lawful in a non-competition law domain can, when implemented by an undertaking in a dominant position, be characterised as ‘abusive’, within the meaning of that provision, if it can have an exclusionary effect and if it is based on methods other than those which are part of competition on the merits.
Where those two conditions are fulfilled, the undertaking in the dominant position concerned can nevertheless not fall within the prohibition laid down in Article 102 TFEU by proving that the practice at hand was either justified objectively and proportionate to that justification, or is counterbalanced, or even outweighed, by advantages in terms of efficiency which also benefit consumers. 5.
Article 102 TFEU must be interpreted as meaning that when a dominant position is abused by one or a number of subsidiaries belonging to an economic unit, the existence of that unit is sufficient to regard the parent company as being also liable for that abuse.
There must be a presumption that such a unit exists if, at the material time, at least the quasi-totality of the capital of those subsidiaries was held, directly or indirectly, by the parent company.
The competition authority is not required to provide any additional evidence unless the parent company establishes that it did not have the power to define the conduct of those subsidiaries, which were acting autonomously.
(1)
OJ C 348, 19.10.2020.
Judgment of the Court (Sixth Chamber) of 12 May 2022 (request for a preliminary ruling from the Tribunal Judicial da Comarca de Braga — Juízo do Trabalho de Barcelos — Portugal) — GD, ES v Luso Temp — Empresa de Trabalho Temporário SA (Case C-426/20) (1) (Reference for a preliminary ruling — Social policy — Directive 2008/104/EC — Temporary agency work — Article 5(1) — Principle of equal treatment — Article 3(1)(f) — Concept of ‘basic working and employment conditions of temporary agency workers’ — Compensation for paid annual leave not taken and the corresponding holiday bonus in the event of termination of the employment relationship) (2022/C 257/06) Language of the case: Portuguese Referring court Tribunal Judicial da Comarca de Braga — Juízo do Trabalho de Barcelos
Parties to the main proceedings Applicants: GD, ES Defendant: Luso Temp — Empresa de Trabalho Temporário SA
Operative part of the judgment The first subparagraph of Article 5(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, read in conjunction with Article 3(1)(f) thereof, must be interpreted as precluding national legislation under which the compensation to which temporary agency workers are entitled in the event of termination of their employment relationship with a user undertaking, in respect of paid annual leave not taken and the corresponding holiday bonus, is less than the compensation to which those workers would be entitled, in the same situation and on the same basis, if they had been recruited directly by that user undertaking to occupy the same post for the same period.
(1)
OJ C 423, 7.12.2020.