Centre belge d'études de marché - Télémarketing (CBEM) v SA Compagnie luxembourgeoise de télédiffusion (CLT) and Information publicité Benelux (IPB).
Date: 1985-10-03
10 IN THAT REGARD IT MUST BE EMPHASIZED THAT , BY VIRTUE OF THE DIVISION OF JURISDICTION PROVIDED FOR BY ARTICLE 177 IN PRELIMINARY-RULING PROCEEDINGS , IT IS FOR THE NATIONAL COURT ALONE TO ASSESS THE RELEVANCE OF SUCH ARGUMENTS AND TO MAKE A FRESH REQUEST TO THE COURT IF IT CONSIDERS THAT IT IS NECESSARY TO OBTAIN A FURTHER RULING ON THE INTERPRETATION OF COMMUNITY LAW FOR THE PURPOSE OF GIVING ITS JUDGMENT . THE COURT NEED NOT THEREFORE CONSIDER THOSE ARGUMENTS .

FIRST QUESTION
16 WITH REGARD TO THE FIRST QUESTION , IT MUST FIRST OF ALL BE REMEMBERED THAT , ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT , MOST RECENTLY CONFIRMED BY THE JUDGMENT OF 9 NOVEMBER 1983 IN CASE 322/81 ( MICHELIN V COMMISSION ( 1983 ) ECR 3461 ), AN UNDERTAKING OCCUPIES A DOMINANT POSITION FOR THE PURPOSES OF ARTICLE 86 WHERE IT ENJOYS A POSITION OF ECONOMIC STRENGTH WHICH ENABLES IT TO HINDER THE MAINTENANCE OF EFFECTIVE COMPETITION ON THE RELEVANT MARKET BY ALLOWING IT TO BEHAVE TO AN APPRECIABLE EXTENT INDEPENDENTLY OF ITS COMPETITORS AND CUSTOMERS AND ULTIMATELY OF CONSUMERS . THE FACT THAT THE ABSENCE OF COMPETITION OR ITS RESTRICTION ON THE RELEVANT MARKET IS BROUGHT ABOUT OR ENCOURAGED BY PROVISIONS LAID DOWN BY LAW IN NO WAY PRECLUDES THE APPLICATION OF ARTICLE 86 , AS THE COURT HAS HELD , INTER ALIA , IN ITS JUDGMENTS OF 13 NOVEMBER 1975 IN CASE 26/75 ( GENERAL MOTORS V COMMISSION ( 1975 ) ECR 1367 ), 16 NOVEMBER 1977 IN CASE 13/77 ( INNO V ATAB ( 1977 ) ECR 2115 ) AND MOST RECENTLY IN ITS JUDGMENT OF 20 MARCH 1985 IN CASE 41/83 ( ITALY V COMMISSION ( 1985 ) ECR 880 ).
17 ALTHOUGH IT IS TRUE , AS COMPAGNIE LUXEMBOURGEOISE HAS POINTED OUT , THAT IT IS NOT INCOMPATIBLE WITH ARTICLE 86 FOR AN UNDERTAKING TO WHICH A MEMBER STATE HAS GRANTED EXCLUSIVE RIGHTS WITHIN THE MEANING OF ARTICLE 90 OF THE TREATY TO ENJOY A MONOPOLY , IT IS NONE THE LESS APPARENT FROM THE SAME ARTICLE THAT SUCH UNDERTAKINGS REMAIN SUBJECT TO THE TREATY RULES ON COMPETITION AND IN PARTICULAR THOSE CONTAINED IN ARTICLE 86 . IN ITS AFORESAID JUDGMENT OF 30 APRIL 1974 IN THE SACCHI CASE , THE COURT ALSO STRESSED THAT , IF CERTAIN MEMBER STATES TREAT UNDERTAKINGS ENTRUSTED WITH THE OPERATION OF TELEVISION , EVEN AS REGARDS THEIR COMMERCIAL ACTIVITIES AND IN PARTICULAR ADVERTISING , AS UNDERTAKINGS ENTRUSTED WITH THE OPERATION OF SERVICES OF GENERAL ECONOMIC INTEREST , THE PROHIBITIONS OF ARTICLE 86 APPLY , AS REGARDS THEIR BEHAVIOUR WITHIN THE MARKET , BY REASON OF ARTICLE 90 ( 2 ), SO LONG AS IT IS NOT SHOWN THAT THE SAID PROHIBITIONS ARE INCOMPATIBLE WITH THE PERFORMANCE OF THEIR TASKS .
26 THAT RULING ALSO APPLIES TO THE CASE OF AN UNDERTAKING HOLDING A DOMINANT POSITION ON THE MARKET IN A SERVICE WHICH IS INDISPENSABLE FOR THE ACTIVITIES OF ANOTHER UNDERTAKING ON ANOTHER MARKET . IF , AS THE NATIONAL COURT HAS ALREADY HELD IN ITS ORDER FOR REFERENCE , TELEMARKETING ACTIVITIES CONSTITUTE A SEPARATE MARKET FROM THAT OF THE CHOSEN ADVERTISING MEDIUM , ALTHOUGH CLOSELY ASSOCIATED WITH IT , AND IF THOSE ACTIVITIES MAINLY CONSIST IN MAKING AVAILABLE TO ADVERTISERS THE TELEPHONE LINES AND TEAM OF TELEPHONISTS OF THE TELEMARKETING UNDERTAKING , TO SUBJECT THE SALE OF BROADCASTING TIME TO THE CONDITION THAT THE TELEPHONE LINES OF AN ADVERTISING AGENT BELONGING TO THE SAME GROUP AS THE TELEVISION STATION SHOULD BE USED AMOUNTS IN PRACTICE TO A REFUSAL TO SUPPLY THE SERVICES OF THAT STATION TO ANY OTHER TELEMARKETING UNDERTAKING . IF , FURTHER , THAT REFUSAL IS NOT JUSTIFIED BY TECHNICAL OR COMMERCIAL REQUIREMENTS RELATING TO THE NATURE OF THE TELEVISION , BUT IS INTENDED TO RESERVE TO THE AGENT ANY TELEMARKETING OPERATION BROADCAST BY THE SAID STATION , WITH THE POSSIBILITY OF ELIMINATING ALL COMPETITION FROM ANOTHER UNDERTAKING , SUCH CONDUCT AMOUNTS TO AN ABUSE PROHIBITED BY ARTICLE 86 , PROVIDED THAT THE OTHER CONDITIONS OF THAT ARTICLE ARE SATISFIED .
27 IT MUST THEREFORE BE HELD IN ANSWER TO THE SECOND QUESTION THAT AN ABUSE WITHIN THE MEANING OF ARTICLE 86 IS COMMITTED WHERE , WITHOUT ANY OBJECTIVE NECESSITY , AN UNDERTAKING HOLDING A DOMINANT POSITION ON A PARTICULAR MARKET RESERVES TO ITSELF OR TO AN UNDERTAKING BELONGING TO THE SAME GROUP AN ANCILLARY ACTIVITY WHICH MIGHT BE CARRIED OUT BY ANOTHER UNDERTAKING AS PART OF ITS ACTIVITIES ON A NEIGHBOURING BUT SEPARATE MARKET , WITH THE POSSIBILITY OF ELIMINATING ALL COMPETITION FROM SUCH UNDERTAKING .