SIA „Maxima Latvija” v Konkurences padome.
Date: 2015-11-26
12. In that regard, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning EU law in situations in which the facts in the main proceedings fell outside the direct scope of that law, provided always that those provisions had been rendered applicable by the national law, which adopted, for solutions applied to purely internal situations, the same approach as that for solutions provided for under EU law. In such cases, according to the settled case-law of the Court, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, inter alia, judgments in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 20, and FNV Kunsten Informatie en Media , C‑413/13, EU:C:2014:2411, paragraph 18).
16. It must be recalled that, to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition within the internal market. According to established case-law since the judgment in LTM  (56/65, EU:C:1996:38), the alternative nature of that requirement, indicated by the conjunction ‘or’, leads, first of all, to the need to consider the precise object of the agreement in the economic context in which it is to be applied (see, inter alia, judgments in Pierre Fabre Dermo-Cosmétique , C‑439/09, EU:C:2011:649, paragraph 34 and the case-law cited, and Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 33).
17. Accordingly, where the anti-competitive object of the agreement is established it is not necessary to examine its effects on competition. Where, however, an analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent (judgment in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 34; see, to that effect, judgments in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 52, and Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraph 116).
18. As regards the concept of restriction of competition ‘by object’, the Court has held that it must be interpreted restrictively and can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see, to that effect, judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 58). That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 50 and the case-law cited).
19. It is established, in that regard, that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered by their nature as likely to have negative effects, in particular on the price, quantity or quality of the goods and services, so that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market (see, to that effect, in particular, judgment in Clair , 123/83, EU:C:1985:33, paragraph 22). Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 51).
20. In the light of the case-law which has just been cited, the essential legal criterion for ascertaining whether an agreement involves a restriction of competition ‘by object’ is therefore the finding that such an agreement reveals in itself a sufficient degree of harm to competition for it to be considered that it is not appropriate to assess its effects (see, to that effect, judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 57).
21. In the present case, it is apparent from the documents submitted to the Court that Maxima Latvija is not in a competitive situation with the shopping centres with which it has concluded the agreements at issue in the main proceedings. Although the Court has already held that a fact of that nature in no way precludes an agreement from containing a restriction of competition ‘by object’ (see, inter alia, judgment in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 43 and the case-law cited), it must, however, be stated that the agreements at issue in the main proceedings are not among the agreements which it is accepted may be considered, by their very nature, to be harmful to the proper functioning of competition.
26. In that regard, the Court has held that the effects of an agreement on competition must be assessed in the economic and legal context in which it occurs and where it might combine with others to have a cumulative effect on competition (judgment in Delimitis , C‑234/89, EU:C:1991:91, paragraph 14 and the case-law cited, and order in Unilever Bestfoods  v Commission , C‑552/03 P, EU:C:2006:607, paragraph 84).
27. In the present case, the assessment of the impact of the agreements at issue in the main proceedings on competition must take account, in the first place, of all of the factors which determine access to the relevant market, for the purposes of assessing whether, in the catchment areas where the shopping centres which are covered by those agreements are located, there are real concrete possibilities for a new competitor to establish itself, including through the occupation of commercial premises in other shopping centres located in those areas or by occupying other commercial premises located outside the shopping centres. Accordingly, it is appropriate in particular to take into consideration the availability and accessibility of commercial land in the catchment areas concerned and the existence of economic, administrative or regulatory barriers to entry of new competitors in those areas (see, by analogy, judgment in Delimitis , C‑234/89, EU:C:1991:91, paragraphs 20 and 21).
28. In the second place, the conditions under which competitive forces operate on the relevant market must be assessed. In that connection it is necessary to know not only the number and the size of operators present on the market, but also the degree of concentration of that market and customer fidelity to existing brands and consumer habits (see, by analogy, judgment in Delimitis , C‑234/89, EU:C:1991:91, paragraph 22).
29. It is only if, after a thorough analysis of the economic and legal context in which the agreements at issue in the main proceedings occur and the specificities of the relevant market, it is found that access to that market is made difficult by all the similar agreements found on the market, that it will then be necessary to analyse to what extent they contribute to any closing-off of that market, on the basis that only agreements which make an appreciable contribution to that closing-off are prohibited (see, by analogy, judgment in Delimitis , C‑234/89, EU:C:1991:91, paragraphs 23 and 24). To assess the extent of the contribution of each of the agreements at issue in the main proceedings to the cumulative closing-off effect, the position of the contracting parties on the market in question and the duration of the agreements must be taken into consideration (see, by analogy, judgment in Delimitis , C‑234/89, EU:C:1991:91, paragraph 25).
30. Moreover, according to the settled case-law of the Court, Article 101(1) TFEU does not restrict such an assessment to actual effects alone, it must also take account of the potential effects of the agreement or practice in question on competition (see, to that effect, judgment in Asnef-Equifax and Administración del Estado , C‑238/05, EU:C:2006:734, paragraph 50 and the case-law cited).