Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio.
Date: 2008-07-01
20. In this respect, it must be borne in mind, first, that Community competition law refers to the activities of undertakings (Case 13/77 GB‑Inno‑BM  [1977] ECR 2115, paragraph 31, and Case C‑280/06 ETI and Others  [2007] ECR I‑0000, paragraph 38 and the case‑law cited). More specifically, Article 82 EC applies to undertakings holding a dominant position.
21. Although the Treaty does not define the concept of an undertaking, the Court has consistently held that any entity engaged in an economic activity, irrespective of its legal form and the way in which it is financed, must be categorised as an undertaking (Case C‑41/90 Höfner and Elser  [1991] ECR I‑1979, paragraph 21, and Joined Cases C‑264/01, C‑306/01, C‑354/01 and C‑355/01 AOK Bundesverband and Others  [2004] ECR I‑2493, paragraph 46).
22. It should be borne in mind in this regard that any activity consisting in offering goods or services on a given market is an economic activity (see, in particular, Case C‑35/96 Commission v Italy  [1998] ECR I‑3851, paragraph 36, and Joined Cases C‑180/98 to C‑184/98 Pavlov and Others  [2000] ECR I‑6451, paragraph 75). Provided that that condition is satisfied, the fact that an activity has a connection with sport does not hinder the application of the rules of the Treaty (Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 4, and Case C‑415/93 Bosman  [1995] ECR I-4921, paragraph 73) including those governing competition law (see, to that effect, Case C‑519/04 P Meca‑Medina and Majcen v Commission  [2006] ECR I‑6991, paragraphs 22 and 28).
24. According to the case‑law of the Court of Justice, activities which fall within the exercise of public powers are not of an economic nature justifying the application of the Treaty rules of competition (see, to that effect, Case C‑364/92 SAT Fluggesellschaft [1994] ECR I‑43, paragraphs 30 and 31) .
25. As regards the possible effect of the exercise of public powers on the classification of a legal person such as ELPA as an undertaking for the purposes of Community competition law, it must be noted, as the Advocate General did at point 49 of her Opinion, that the fact that, for the exercise of part of its activities, an entity is vested with public powers does not, in itself, prevent it from being classified as an undertaking for the purposes of Community competition law in respect of the remainder of its economic activities (Case C‑82/01 P Aéroports de Paris v Commission  [2002] ECR I‑9297, paragraph 74). The classification as an activity falling within the exercise of public powers or as an economic activity must be carried out separately for each activity exercised by a given entity.
27. As regards the effect that the fact that ELPA does not seek to make a profit may have on that classification, it should be noted that, in Case C‑222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraphs 122 and 123), the Court stated that the fact that the offer of goods or services is made without profit motive does not prevent the entity which carries out those operations on the market from being considered an undertaking, since that offer exists in competition with that of other operators which do seek to make a profit.
30. In that regard, it must be observed that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (Case C‑450/06 Varec  [2008] ECR I‑0000, paragraph 23). However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary.
31. Before it is possible to assess whether a legal person such as ELPA has a dominant position within the meaning of Article 82 EC, it is necessary to define the relevant market, both from the point of view of the goods or services concerned and from the geographic point of view (Case 27/76 United Brands and United Brands Continentaal v Commission  [1978] ECR 207, paragraph 10).
32. According to settled case-law, for the purposes of applying Article 82 EC, the relevant product or service market includes products or services which are substitutable or sufficiently interchangeable with the product or service in question, not only in terms of their objective characteristics, by virtue of which they are particularly suitable for satisfying the constant needs of consumers, but also in terms of the conditions of competition and the structure of supply and demand on the market in question (see, to that effect, Case 31/80 L’Oréal  [1980] ECR 3775, paragraph 25; Case 322/81 Nederlandsche Banden Industrie Michelin v Commission  [1983] ECR 3461, paragraph 37; and Case C‑62/86 AKZO v Commissio n [1991] ECR I‑3359, paragraph 51).
34. The definition of the relevant geographical market calls, just like the definition of the product or service market, for an economic assessment. The geographical market can thus be defined as the territory in which all traders operate under the same conditions of competition in so far as concerns specifically the relevant products or services. From that point of view, it is not necessary for the objective conditions of competition between traders to be perfectly homogeneous. It is sufficient if they are similar or sufficiently homogeneous (see, to that effect, United Brands and United Brands Continentaal v Commission , cited above, paragraphs 44 and 53). Furthermore, the market may be confined to a single Member State (see, to that effect, Nederlandsche Banden Industrie Michelin v Commission , cited above, paragraph 28).
35. As stated in the order for reference, and as was also confirmed at the hearing before the Court, the activities in which ELPA engages are confined to the territory of Greece. However, the territory of a Member State may constitute a substantial part of the common market (see, to that effect, Case C‑260/89 ERT  [1991] ECR I-2925, paragraph 31). It is for the referring court, however, to determine whether the criterion relating to similar or sufficiently homogeneous conditions of competition is satisfied in the main proceedings.
37. It should be recalled in this respect that it is clear from the case‑law that the concept of a ‘dominant position’ under Article 82 EC concerns a position of economic strength held by an undertaking, which enables it to prevent effective competition from being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, consumers ( United Brands and United Brands Continentaal v Commission , cited above, paragraph 65; Case 85/76 Hoffmann-La Roche v Commission  [1979] ECR 461, paragraph 38; and Nederlandsche Banden-Industrie-Michelin v Commission , cited above, paragraph 30).
39. It should further be observed that Article 82 EC cannot be infringed by a rule such as that laid down in Article 49 of the Greek Road Traffic Code unless trade between Member States is affected by it. As the Advocate General pointed out in points 63 and 64 of her Opinion, such an effect on trade between Member States can be assumed only if it is possible to foresee with a sufficient degree of probability, on the basis of a set of objective legal and factual elements, that the behaviour in question may have an influence, direct or indirect, actual or potential, on trade between Member States in such a way as might hinder the attainment of a single market between Member States (Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 48). Purely hypothetical or speculative effects that the conduct of an undertaking in a dominant position may have do not satisfy that criterion. Similarly, the impact on intra-community trade must not be insignificant (Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others  [1999] ECR I-135, paragraph 60, and Ambulanz Glöckner , cited above, paragraph 48).
40. Accordingly, the effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (Case C‑250/92 DLG  [1994] ECR I-5641, paragraph 54).
41. Furthermore, the assessment of whether the effect on trade between Member States is appreciable must take account of the conduct of the dominant undertaking in question, in so far as Article 82 EC precludes all conduct which is capable of affecting freedom of trade in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the single market (Case 22/78 Hugin Kassaregister and Hugin Cash Registers v Commission  [1979] ECR 1869, paragraph 17).
42. The fact that the conduct of an undertaking in a dominant position relates only to the marketing of products in a single Member State is not sufficient to preclude the possibility that trade between Member States might be affected (see, to that effect, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I-11421, paragraph 45). Such conduct may have the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (see, by analogy, Joined Cases C‑295/04 to C‑298/04 Manfredi and Others  [2006] ECR I‑6619, paragraphs 45 and 46).
44. Article 86(2) EC allows Member States to confer, on undertakings to which they entrust the operation of services of general economic interest, exclusive rights which may hinder the application of the rules of the Treaty on competition in so far as restrictions on competition, or even the exclusion of all competition, by other economic operators are necessary to ensure the performance of the particular tasks assigned to the undertakings holding the exclusive rights (Case C‑320/91 Corbeau  [1993] ECR I-2533, paragraph 14).
45. As regards the organisation and commercial exploitation of motorcycling events by a legal person such as ELPA, the Greek Government has not claimed that ELPA has been entrusted with the exercise of those activities through an act of public authority. It is not therefore necessary to examine further whether those activities may constitute a service of general economic interest (see, to that effect, Case 127/73 BRT and Société belge des auteurs, compositeurs et éditeurs  [1974] ECR 313, paragraph 20, and Case 66/86 Saeed Flugreisen and Silver Line Reisebüro  [1989] ECR 803, paragraph 55).
49. On the other hand, a Member State will be in breach of the prohibitions laid down by those two provisions if the undertaking in question, merely by exercising the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses ( Höfner and Elser , cited above, paragraph 29; ERT , cited above, paragraph 37; Case C‑179/90 Merci convenzionali porto di Genova  [1991] ECR I-5889, paragraphs 16 and 17; and Case C‑323/93 Centre d’insémination de la Crespelle [1994] ECR I-5077, paragraph 18). In this respect, it is not necessary that any abuse should actually occur (see, to that effect, Case C‑55/96 Job Centre  [1997] ECR I‑7119, paragraph 36).
50. In any event, Articles 82 EC and 86(1) EC are infringed where a measure imputable to a Member State, and in particular a measure by which a Member State confers special or exclusive rights within the meaning of Article 86(1) EC, gives rise to a risk of an abuse of a dominant position  (see, to that effect, ERT , cited above, paragraph 37; Merci convenzionali porto di Genova , cited above, paragraph 17; and Case C‑380/05 Centro Europa 7  [2008] ECR I‑0000, paragraph 60).
51. A system of undistorted competition, such as that provided for by the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. To entrust a legal person such as ELPA, which itself organises and commercially exploits motorcycling events, the task of giving the competent administration its consent to applications for authorisation to organise such events, is tantamount de facto  to conferring upon it the power to designate the persons authorised to organise those events and to set the conditions in which those events are organised, thereby placing that entity at an obvious advantage over its competitors (see, by analogy, Case C‑202/88 France v Commission  [1991] ECR I-1223, paragraph 51, and Case C‑18/88 GB Inno BM [1991] ECR I‑5941, paragraph 25). Such a right may therefore lead the undertaking which possesses it to deny other operators access to the relevant market. That situation of unequal conditions of competition is also highlighted by the fact, confirmed at the hearing before the Court, that, when ELPA organises or participates in the organisation of motorcycling events, it is not required to obtain any consent in order that the competent administration grant it the required authorisation.
52. Furthermore, such a rule, which gives a legal person such as ELPA the power to give consent to applications for authorisation to organise motorcycling events without that power being made subject by that rule to restrictions, obligations and review, could lead the legal person entrusted with giving that consent to distort competition by favouring events which it organises or those in whose organisation it participates.