Tetra Pak International SA v Commission of the European Communities.
Date: 1996-11-14
12 The second part of the first plea, alleging that the Court of First Instance used the wrong legal standard, raises three points. First, Tetra Pak submits that the market for machines and cartons used for packaging non-dairy products should have been excluded from the relevant market. The Court of First Instance should have examined, as the Court of Justice did in Case 322/81 Michelin v Commission [1983] ECR 3461, at paragraph 37, whether the products in question were particularly suitable for satisfying constant needs and only to a limited extent interchangeable with other products. In Tetra Pak' s submission, the Court of First Instance should not have contented itself, as it did in paragraphs 65, 74 and 75 of its judgment, with finding first that the milk-packaging sector was much bigger than that for non-dairy products and then that non-aseptic cartons for packaging fruit juice had only a "marginal share" of the market.
24 It must first be stressed that there can be no question of challenging the Court of First Instance' s assessment, at paragraph 113 of its judgment, that Article 86 gives no explicit guidance as to the requirements relating to where on the product market the abuse took place. That Court was therefore correct in stating, at paragraph 115, that the actual scope of the special responsibility imposed on a dominant undertaking must be considered in the light of the specific circumstances of each case which show a weakened competitive situation.
25 In that regard, the case-law cited by the Court of First Instance is relevant. Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223 and Case 311/84 CBEM v CLT and IPB [1985] ECR 3261 provide examples of abuses having effects on markets other than the dominated markets. In Case C-62/86 AKZO v Commission [1991] ECR I-3359 and Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, the Community judicature found certain conduct on markets other than the dominated markets and having effects on the dominated markets to be abusive. The Court of First Instance was therefore right in concluding from that case-law, at paragraph 116 of the judgment under appeal, that it must reject the applicant' s arguments to the effect that the Community judicature had ruled out any possibility of Article 86 applying to an act committed by an undertaking in a dominant position on a market distinct from the dominated market.
27 It is true that application of Article 86 presupposes a link between the dominant position and the alleged abusive conduct, which is normally not present where conduct on a market distinct from the dominated market produces effects on that distinct market. In the case of distinct, but associated, markets, as in the present case, application of Article 86 to conduct found on the associated, non-dominated, market and having effects on that associated market can only be justified by special circumstances.
31 Accordingly, the Court of First Instance was right to accept the application of Article 86 of the Treaty in this case, given that the quasi-monopoly enjoyed by Tetra Pak on the aseptic markets and its leading position on the distinct, though closely associated, non-aseptic markets placed it in a situation comparable to that of holding a dominant position on the markets in question as a whole.
37 It must, moreover, be stressed that the list of abusive practices set out in the second paragraph of Article 86 of the Treaty is not exhaustive. Consequently, even where tied sales of two products are in accordance with commercial usage or there is a natural link between the two products in question, such sales may still constitute abuse within the meaning of Article 86 unless they are objectively justified. The reasoning of the Court of First Instance in paragraph 137 of its judgment is not therefore in any way defective.
40 Tetra Pak considers that the possibility of recouping the losses incurred as a result of predatory sales is a constitutive element in the notion of predatory pricing. That is clear, it claims, from paragraph 71 of the AKZO judgment, cited above. Since, however, both the Commission and the Court of First Instance accept that sales below cost took place only on the non-aseptic markets, on which Tetra Pak was not found to hold a dominant position, it had no realistic chance of recouping its losses later.
41 In AKZO this Court did indeed sanction the existence of two different methods of analysis for determining whether an undertaking has practised predatory pricing. First, prices below average variable costs must always be considered abusive. In such a case, there is no conceivable economic purpose other than the elimination of a competitor, since each item produced and sold entails a loss for the undertaking. Secondly, prices below average total costs but above average variable costs are only to be considered abusive if an intention to eliminate can be shown.
42 At paragraph 150 of the judgment under appeal, the Court of First Instance carried out the same examination as did this Court in AKZO. For sales of non-aseptic cartons in Italy between 1976 and 1981, it found that prices were considerably lower than average variable costs. Proof of intention to eliminate competitors was therefore not necessary. In 1982, prices for those cartons lay between average variable costs and average total costs. For that reason, in paragraph 151 of its judgment, the Court of First Instance was at pains to establish ° and the appellant has not criticized it in that regard ° that Tetra Pak intended to eliminate a competitor.
43 The Court of First Instance was also right, at paragraphs 189 to 191 of the judgment under appeal, to apply exactly the same reasoning to sales of non-aseptic machines in the United Kingdom between 1981 and 1984.
44 Furthermore, it would not be appropriate, in the circumstances of the present case, to require in addition proof that Tetra Pak had a realistic chance of recouping its losses. It must be possible to penalize predatory pricing whenever there is a risk that competitors will be eliminated. The Court of First Instance found, at paragraphs 151 and 191 of its judgment, that there was such a risk in this case. The aim pursued, which is to maintain undistorted competition, rules out waiting until such a strategy leads to the actual elimination of competitors.