Post Danmark A/S v Konkurrencerådet.
Date: 2015-10-06
26. As regards the application of Article 82 EC to a rebate scheme, it should be recalled that, in prohibiting the abuse of a dominant market position in so far as trade between Member States could be affected, that article refers to conduct which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is already weakened and which has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (see, to that effect, judgments in Nederlandsche Banden-Industrie-Michelin  v Commission , 322/81, EU:C:1983:313, paragraph 70, and British Airw ays  v Commission , C‑95/04 P, EU:C:2007:166, paragraph 66).
27. It is also settled case-law that, in contrast to a quantity discount linked solely to the volume of purchases from the manufacturer concerned, which is not, in principle, liable to infringe Article 82 EC, a loyalty rebate, which by offering customers financial advantages tends to prevent them from obtaining all or most of their requirements from competing manufacturers, amounts to an abuse within the meaning of that provision (see judgments in Nederlandsche Banden-Industrie-Michelin  v Commission , 322/81, EU:C:1983:313, paragraph 71, and Tomra Systems and Others v Commission , C‑549/10 P, EU:C:2012:221, paragraph 70).
29. In those circumstances, in order to determine whether the undertaking in a dominant position has abused that position by applying a rebate scheme such as that at issue in the main proceedings, the Court has repeatedly held that it is necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebate tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition (judgments in British Airways  v Commission , C‑95/04 P, EU:C:2007:166, paragraph 67, and Tomra Systems and Others v Commission , C‑549/10 P, EU:C:2012:221, paragraph 71).
31. In that regard, it first has to be determined whether those rebates can produce an exclusionary effect, that is to say whether they are capable, first, of making market entry very difficult or impossible for competitors of the undertaking in a dominant position and, secondly, of making it more difficult or impossible for the co-contractors of that undertaking to choose between various sources of supply or commercial partners. It then has to be examined whether there is an objective economic justification for the discounts granted (judgment in British Airways  v Commission , C‑95/04 P, EU:C:2007:166, paragraphs 68 and 69).
33. It is apparent from the case-law that the contractual obligations of co-contractors of the undertaking in a dominant position and the pressure exerted upon them may be particularly strong where a discount does not relate solely to the growth in purchases of products of that undertaking made by those co-contractors during the period under consideration, but extends also to those purchases in aggregate. In that way, relatively modest variations in sales of the products of the dominant undertaking have disproportionate effects on co-contractors (see, to that effect, judgment in British Airways  v Commission , C‑95/04 P, EU:C:2007:166, paragraph 73).
34. In addition, it must be pointed out that the rebate scheme at issue in the main proceedings was based on a reference period of one year. However, any system under which discounts are granted according to the quantities sold during a relatively long reference period has the inherent effect, at the end of that period, of increasing the pressure on the buyer to reach the purchase figure needed to obtain the discount or to avoid suffering the expected loss for the entire period (judgment in Nederlandsche Banden-Industrie-Michelin  v Commission , 322/81, EU:C:1983:313, paragraph 81).
38. However, the mere fact that a rebate scheme is not discriminatory does not preclude its being regarded as capable of producing an exclusionary effect on the market, contrary to Article 82 EC. Indeed, in the judgment in Nederlandsche Banden-Industrie-Michelin  v Commission  (322/81, EU:C:1983:313, paragraphs 86 and 91), the Court, having rejected the Commission’s complaint that the discount system applied by Michelin was discriminatory, nevertheless held that it infringed Article 82 EC since it made dealers dependent upon Michelin.
40. An undertaking which has a very large market share is by virtue of that share in a position of strength which makes it an unavoidable trading partner and which secures for it freedom of action (judgment in Hoffmann-La Roche  v Commission , 85/76, EU:C:1979:36, paragraph 41). In those circumstances, it is particularly difficult for competitors of that undertaking to outbid it in the face of discounts based on overall sales volume. By reason of its significantly higher market share, the undertaking in a dominant position generally constitutes an unavoidable business partner in the market (see judgment in British Airways  v Commission , C‑95/04 P, EU:C:2007:166, paragraph 75).
42. In those circumstances, it must be held that a rebate scheme operated by an undertaking, such as the scheme at issue in the main proceedings, which, without tying customers to that undertaking by a formal obligation, nevertheless tends to make it more difficult for those customers to obtain supplies from competing undertakings, produces an anti-competitive exclusionary effect (see, to that effect, judgment in Tomra Systems and Others  v Commission , C‑549/10 P, EU:C:2012:221, paragraph 72).
45. Indeed, in a case that concerned, inter alia, the assessment of the loyalty rebates applied by a dominant undertaking, the Court held that there was no need to ascertain the number of contracts which contained the clause at issue and the number which did not (judgment in Suiker Unie and Others  v Commission , 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 511).
48. In particular, a dominant undertaking may demonstrate that the exclusionary effect arising from its conduct may be counterbalanced, or outweighed, by advantages in terms of efficiency which also benefit the consumer (see judgments in British Airways  v Commission , C‑95/04 P, EU:C:2007:166, paragraph 86, and TeliaSonera Sverige , C‑52/09, EU:C:2011:83, paragraph 76).
49. In that last regard, it is for the dominant undertaking to show that the efficiency gains likely to result from the conduct under consideration counteract any likely negative effects on competition and consumer welfare in the affected markets, that those gains have been, or are likely to be, brought about as a result of that conduct, that such conduct is necessary for the achievement of those gains in efficiency and that it does not eliminate effective competition, by removing all or most existing sources of actual or potential competition (judgment in Post Danmark , C‑209/10, EU:C:2012:172, paragraph 42).
54. That test is based on a comparison of the prices charged by a dominant undertaking and certain costs incurred by that undertakings as well as its strategy (see judgment in Post Danmark , C‑209/10, EU:C:2012:172, paragraph 28).
55. The as-efficient-competitor test has been specifically applied by the Court to low-pricing practices in the form of selective prices or predatory prices (see, in respect of selective prices, judgment in Post Danmark , C‑209/10, EU:C:2012:172, paragraphs 28 to 35, and in respect of predatory prices, judgments in AKZO  v Commission , C‑62/86, EU:C:1991:286, paragraphs 70 to 73, and France Télécom  v Commission , C‑202/07 P, EU:C:2009:214, paragraphs 107 and 108), and margin squeeze (judgment in TeliaSonera Sverige , C‑52/09, EU:C:2011:83, paragraphs 40 to 46).
56. As regards the comparison of prices and costs in the context of applying Article 82 EC to a rebate scheme, the Court has held that the invoicing of ‘negative prices’, that is to say, prices below cost prices, to customers is not a prerequisite of a finding that a retroactive rebate scheme operated by a dominant undertaking is abusive (judgment in Tomra Systems and Others  v Commission , C‑549/10 P, EU:C:2012:221, paragraph 73). In that same case, the Court specified that the absence of a comparison of prices charged with costs did not constitute an error of law (judgment in Tomra Systems and Others  v Commission , C‑549/10 P, EU:C:2012:221, paragraph 80).
66. The Court has also held that, in order to establish whether such a practice is abusive, that practice must have an anti-competitive effect on the market, but the effect does not necessarily have to be concrete, and it is sufficient to demonstrate that there is an anti-competitive effect which may potentially exclude competitors who are at least as efficient as the dominant undertaking (judgment in TeliaSonera Sverige , C‑52/09, EU:C:2011:83, paragraph 64).
69. Such an assessment seeks to determine whether the conduct of the dominant undertaking produces an actual or likely exclusionary effect, to the detriment of competition and, thereby, of consumers’ interests (judgment in Post Danmark , C‑209/10, EU:C:2012:172, paragraph 44).
70. As regards, in the second place, the serious or appreciable nature of an anti-competitive effect, although it is true that a finding that an undertaking has a dominant position is not in itself a ground of criticism of the undertaking concerned (judgment in Post Danmark , C‑209/10, EU:C:2012:172, paragraph 21), the conduct of such an undertaking may give rise to an abuse of its dominant position because the structure of competition on the market has already been weakened (see, to that effect, judgments in Hoffmann-La Roche v Commission , 85/76, EU:C:1979:36, paragraph 123, and France Télécom  v Commission , C‑202/07 P, EU:C:2009:214, paragraph 107).
71. Consequently, the Court has repeatedly held that a dominant undertaking has a special responsibility not to allow its behaviour to impair genuine, undistorted competition on the internal market (see judgment in Post Danmark , C‑209/10, EU:C:2012:172, paragraph 23 and the case-law cited).
72. In addition, since the structure of competition on the market has already been weakened by the presence of the dominant undertaking, any further weakening of the structure of competition may constitute an abuse of a dominant position (judgment in Hoffmann-La Roche v Commission , 85/76, EU:C:1979:36, paragraph 123).
73. It follows that fixing an appreciability ( de minimis ) threshold for the purposes of determining whether there is an abuse of a dominant position is not justified. That anti-competitive practice is, by its very nature, liable to give rise to not insignificant restrictions of competition, or even of eliminating competition on the market on which the undertaking concerned operates.