Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG.
Date: 1998-11-26
16 This court finds that, in accordance with established case-law, it is for the national courts alone which are seised of the case and are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where the questions put by national courts concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling (Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraphs 34 and 35; Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Köln [1990] ECR I-4003, paragraphs 19 and 20).
17 It should also be noted that Article 177 of the Treaty, which is based on a clear separation of functions between national courts and this Court, does not allow this Court to review the reasons for which a reference is made. Consequently, a request from a national court may be rejected only if it is quite obvious that the interpretation of Community law or review of the validity of a rule of Community law sought by that court bears no relation to the actual facts of the case or to the subject-matter of the main action (Case C-446/93 SEIM v Subdirector-Geral das Alfândegas [1996] ECR I-73, paragraph 28).
19 It is clear from the judgment in Walt Wilhelm, cited above, that it is not impossible for the same situation to fall within the scope of both Community and national competition law, even if they consider restrictive practices from different points of view (see also Joined Cases 253/78 and 1/79 to 3/79 Procureur de la République v Giry and Guerlain [1980] ECR 2327, paragraph 15; Case C-67/91 Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada [1992] ECR I-4785, paragraph 11).
32 In examining whether an undertaking holds a dominant position within the meaning of Article 86 of the Treaty, it is of fundamental importance, as the Court has emphasised many times, to define the market in question and to define the substantial part of the common market in which the undertaking may be able to engage in abuses which hinder effective competition (Case C-242/95 GT-Link v DSB [1997] ECR I-4449, paragraph 36).
33 It is settled case-law that, for the purposes of applying Article 86 of the Treaty, the market for the product or service in question comprises all the products or services which in view of their characteristics are particularly suited to satisfy constant needs and are only to a limited extent interchangeable with other products or services (Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, paragraph 25; Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 51).
34 As regards the definition of the market at issue in the main proceedings, it is therefore for the national court to determine, inter alia, whether home-delivery schemes constitute a separate market, or whether other methods of distributing daily newspapers, such as sale in shops or at kiosks or delivery by post, are sufficiently interchangeable with them to have to be taken into account also.  In deciding whether there is a dominant position the court must also take account, as the Commission has emphasised, of the possible existence of regional home-delivery schemes.
35 If that examination leads the national court to conclude that a separate market in home-delivery schemes does exist, and that there is an insufficient degree of interchangeability between Mediaprint's nationwide scheme and other, regional, schemes, it must hold that Mediaprint, which according to the information in the order for reference operates the only nationwide home-delivery service in Austria, is de facto in a monopoly situation in the market thus defined, and thus holds a dominant position in it.
36 In that event, the national court would also have to find that Mediaprint holds a dominant position in a substantial part of the common market, since the case-law indicates that the territory of a Member State over which a dominant position extends is capable of constituting a substantial part of the common market (see, to that effect, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 28; Case C-323/93 Centre d'Insémination de la Crespelle [1994] ECR I-5077, paragraph 17).
38 Although in Commercial Solvents v Commission and CBEM, cited above, the Court of Justice held the refusal by an undertaking holding a dominant position in a given market to supply an undertaking with which it was in competition in a neighbouring market with raw materials (Commercial Solvents v Commission, paragraph 25) and services (CBEM, paragraph 26) respectively, which were indispensable to carrying on the rival's business, to constitute an abuse, it should be noted, first, that the Court did so to the extent that the conduct in question was likely to eliminate all competition on the part of that undertaking.
39 Secondly, in Magill, at paragraphs 49 and 50, the Court held that refusal by the owner of an intellectual property right to grant a licence, even if it is the act of an undertaking holding a dominant position, cannot in itself constitute abuse of a dominant position, but that the exercise of an exclusive right by the proprietor may, in exceptional circumstances, involve an abuse.
40 In Magill, the Court found such exceptional circumstances in the fact that the refusal in question concerned a product (information on the weekly schedules of certain television channels) the supply of which was indispensable for carrying on the business in question (the publishing of a general television guide), in that, without that information, the person wishing to produce such a guide would find it impossible to publish it and offer it for sale (paragraph 53), the fact that such refusal prevented the appearance of a new product for which there was a potential consumer demand (paragraph 54), the fact that it was not justified by objective considerations (paragraph 55), and that it was likely to exclude all competition in the secondary market of television guides (paragraph 56).
41 Therefore, even if that case-law on the exercise of an intellectual property right were applicable to the exercise of any property right whatever, it would still be necessary, for the Magill judgment to be effectively relied upon in order to plead the existence of an abuse within the meaning of Article 86 of the Treaty in a situation such as that which forms the subject-matter of the first question, not only that the refusal of the service comprised in home delivery be likely to eliminate all competition in the daily newspaper market on the part of the person requesting the service and that such refusal be incapable of being objectively justified, but also that the service in itself be indispensable to carrying on that person's business, inasmuch as there is no actual or potential substitute in existence for that home-delivery scheme.
43 In the first place, it is undisputed that other methods of distributing daily newspapers, such as by post and through sale in shops and at kiosks, even though they may be less advantageous for the distribution of certain newspapers, exist and are used by the publishers of those daily newspapers.
44 Moreover, it does not appear that there are any technical, legal or even economic obstacles capable of making it impossible, or even unreasonably difficult, for any other publisher of daily newspapers to establish, alone or in cooperation with other publishers, its own nationwide home-delivery scheme and use it to distribute its own daily newspapers.
46 For such access to be capable of being regarded as indispensable, it would be necessary at the very least to establish, as the Advocate General has pointed out at point 68 of his Opinion, that it is not economically viable to create a second home-delivery scheme for the distribution of daily newspapers with a circulation comparable to that of the daily newspapers distributed by the existing scheme.