• United Brands v Commission Case 27/76 Court of Justice [1978] ECR 207

DOMINANT POSITION REFERRED TO IN THIS ARTICLE RELATES TO A POSITION OF ECONOMIC

STRENGTH ENJOYED BY AN UNDERTAKING WHICH ENABLES IT TO PREVENT EFFECTIVE
COMPETITION BEING MAINTAINED ON THE RELEVANT MARKET BY GIVING IT THE POWER TO
BEHAVE TO AN APPRECIABLE EXTENT INDEPENDENTLY OF ITS COMPETITORS , CUSTOMERS AND
ULTIMATELY OF ITS CONSUMERS .

-UBC EVEN EXTENDS ITS CONTROL TO RIPENER/DISTRIBUTORS AND WHOLESALERS BY SETTING UP

A COMPLETE NETWORK OF AGENTS
-THAT UNLESS CIRCUMSTANCES ARE EXCEPTIONAL THERE IS A PRODUCTION SURPLUS .

Summary:

1 . THE OPPORTUNITIES FOR COMPETITION UNDER ARTICLE 86 OF THE TREATY MUST BE

CONSIDERED HAVING REGARD TO THE PARTICULAR FEATURES OF THE PRODUCT IN
QUESTION AND WITH REFERENCE TO A CLEARLY DEFINED GEOGRAPHIC AREA IN WHICH IT
IS MARKETED AND WHERE THE CONDITIONS OF COMPETITION ARE SUFFICIENTLY
HOMOGENEOUS FOR THE EFFECT OF THE ECONOMIC POWER OF THE UNDERTAKING
CONCERNED TO BE ABLE TO BE EVALUATED . FOR THE PRODUCT TO BE REGARDED AS
FORMING A MARKET WHICH IS SUFFICIENTLY DIFFERENTIATED FROM OTHER FRUIT
MARKETS IT MUST BE POSSIBLE FOR IT TO BE SINGLED OUT BY SUCH SPECIAL FEATURES
DISTINGUISHING IT FROM OTHER FRUITS THAT IT IS ONLY TO A LIMITED EXTENT
INTERCHANGEABLE WITH THEM AND IS ONLY EXPOSED TO THEIR COMPETITION IN A WAY
THAT IS HARDLY PERCEPTIBLE .

2 . THE DOMINANT POSITION REFERRED TO IN ARTICLE 86 RELATES TO A POSITION OF

ECONOMIC STRENGTH ENJOYED BY AN UNDERTAKING WHICH ENABLES IT TO PREVENT
EFFECTIVE COMPETITION BEING MAINTAINED ON THE RELEVANT MARKET BY GIVING IT
THE POWER TO BEHAVE TO AN APPRECIABLE EXTENT INDEPENDENTLY OF ITS
COMPETITORS , CUSTOMERS AND ULTIMATELY OF ITS CONSUMERS . IN GENERAL A
DOMINANT POSITION DERIVES FROM A COMBINATION OF SEVERAL FACTORS WHICH ,
TAKEN SEPARATELY , ARE NOT NECESSARILY DETERMINATIVE .

3 . A TRADER CAN ONLY BE IN A DOMINANT POSITION ON THE MARKET FOR A PRODUCT IF

HE HAS SUCCEEDED IN WINNING A LARGE PART OF THIS MARKET . HOWEVER AN
UNDERTAKING DOES NOT HAVE TO HAVE ELIMINATED ALL OPPORTUNITY FOR
COMPETITION IN ORDER TO BE IN A DOMINANT POSITION .

4 . AN UNDERTAKING ' S ECONOMIC STRENGTH IS NOT MEASURED BY ITS PROFITABILITY ;

A REDUCED PROFIT MARGIN OR EVEN LOSSES FOR A TIME ARE NOT INCOMPATIBLE WITH A
DOMINANT POSITION , JUST AS LARGE PROFITS MAY BE COMPATIBLE WITH A SITUATION
WHERE THERE IS EFFECTIVE COMPETITION . THE FACT THAT AN UNDERTAKING ' S
PROFITABILITY IS FOR A TIME MODERATE OR NON-EXISTENT MUST BE CONSIDERED IN
THE LIGHT OF THE WHOLE OF THAT UNDERTAKING ' S OPERATIONS .

5 . THE FACT THAT AN UNDERTAKING FORBIDS ITS DULY APPOINTED DISTRIBUTORS TO

RESELL THE PRODUCT IN QUESTION IN CERTAIN CIRCUMSTANCES IS AN ABUSE OF THE
DOMINANT POSITION SINCE IT LIMITS MARKETS TO THE PREJUDICE OF CONSUMERS AND
AFFECTS TRADE BETWEEN MEMBER STATES , IN PARTICULAR BY PARTITIONING NATIONAL
MARKETS .
 6 . AN UNDERTAKING IN A DOMINANT POSITION FOR THE PURPOSE OF MARKETING A
PRODUCT - WHICH CASHES IN ON THE REPUTATION OF A BRAND NAME KNOWN TO AND
VALUED BY THE CONSUMERS - CANNOT STOP SUPPLYING A LONG- STANDING CUSTOMER
WHO ABIDES BY REGULAR COMMERCIAL PRACTICE , IF THE ORDERS PLACED BY THAT
CUSTOMER ARE IN NO WAY OUT OF THE ORDINARY . SUCH CONDUCT IS INCONSISTENT
WITH THE OBJECTIVES LAID DOWN IN ARTICLE 3 ( F ) OF THE TREATY , WHICH ARE SET
OUT IN DETAIL IN ARTICLE 86 , ESPECIALLY IN PARAGRAPHS ( B ) AND ( C ), SINCE THE
REFUSAL TO SELL WOULD LIMIT MARKETS TO THE PREJUDICE OF CONSUMERS AND WOULD
AMOUNT TO DISCRIMINATION WHICH MIGHT IN THE END ELIMINATE A TRADING PARTY
FROM THE RELEVANT MARKET .

7 . IF THE OCCUPIER OF A DOMINANT POSITION , ESTABLISHED IN THE COMMON MARKET ,

AIMS AT ELIMINATING A COMPETITOR WHO IS ALSO ESTABLISHED IN THE COMMON
MARKET , IT IS IMMATERIAL WHETHER THIS BEHAVIOUR RELATES TO TRADE BETWEEN
MEMBER STATES ONCE IT HAS BEEN SHOWN THAT SUCH ELIMINATION WILL HAVE
REPERCUSSIONS ON THE PATTERNS OF COMPETITION IN THE COMMON MARKET .

8 . THE POLICY OF DIFFERING PRICES ENABLING UBC TO APPLY DISSIMILAR CONDITIONS

TO EQUIVALENT TRANSACTIONS WITH OTHER TRADING PARTIES , THEREBY PLACING THEM
AT A COMPETITIVE DISADVANTAGE IS AN ABUSE OF A DOMINANT POSITION .

9 . CHARGING A PRICE WHICH IS EXCESSIVE BECAUSE IT HAS NO REASONABLE RELATION

TO THE ECONOMIC VALUE OF THE PRODUCT SUPPLIED MAY BE AN ABUSE OF A DOMINANT
POSITION WITHIN THE MEANING OF SUBPARAGRAPH ( A ) OF ARTICLE 86 ; THIS EXCESS
COULD , INTER ALIA , BE DETERMINED OBJECTIVELY IF IT WERE POSSIBLE FOR IT TO BE
CALCULATED BY MAKING A COMPARISON BETWEEN THE SELLING PRICE OF THE PRODUCT IN
QUESTION AND ITS COST OF PRODUCTION , WHICH WOULD DISCLOSE THE AMOUNT OF
THE PROFIT MARGIN .

2. Hoffmann-La Roche & Co. v Commission

C — The dominant position of the applicant In each of the seven markets referred to (vitamins A, B2, B6, C, E,
biotin (vitamin H) and pantothenic acid (vitamin B3)) Roche has a dominant position within the meaning of
Article 86 of the Treaty, based on its complete freedom of action which enables it to impede effective
competition within the Common Market. This dominant position results from: 1. The market share held by
Roche ranging from 95% for vitamins B6 and H to 47% (the second producer having only about half this share)
for vitamin A. 2. The far wider range of vitamins manufactured by Roche. The requirements of many users
extend to several groups of vitamins so that Roche is able to employ a sales and pricing strategy which is far
less dependent than that of other manufacturers on the conditions of competition in each market. 3. The fact
that Roche is the world's largest producer of all vitamins and that its turnover exceeds that of all other
producers. 4. The fact that it has technological advantages not possessed by its competitors.
5. The fact that it has commercial advantages not possessed by its competitors. 6. The absence of potential
competition resulting from the fact that entry into the market in vitamins requires large investment
programmed over long periods. D — The existence ofan abuse Roche's conduct constitutes an abuse of a
dominant position because by its nature it hampers the freedom of choice and equality of treatment of
purchasers and restricts the competition between bulk vitamin manufacturers in the Common Market and is
likely to affect trade between Member States: 1. An agreement with purchasers that they will buy all or a very
large proportion of their requirements from only one source removes all freedom of choice from purchasers in
their selection of sources of supply. Failure by the customer to observe his obligation of exclusivity causes the
fidelity rebate to be forfeited in respect of all his purchases from Roche whatever the group of vitamins
concerned; 2. Moreover, that exclusive purchasing agreement interferes with competition between vitamin
manufacturers; 3. The "English clause" leaves to Roche the decision in each case and depending on the
circumstances whether partially to admit a competitor to the market which Roche has reserved for itself. In
fact the customer is free to purchase from the competitor only where Roche decides not to match the price
offered. Moreover, the clause operates only where a "reputable" competitor in the customer's territory is
involved. Thus if the sale in question is of interest by reason either of the quantity or the type of vitamin
involved or the fact that the manufacturer is reputable, Roche, with its strgth in the market, is put in a po on
to adjust its price and so pr;-. rve exclusivity of supply; 4. The fidelity rebates lead to discrimination
prohibited under Article 86 (c) and to the disadvantage both of those customers of Roche who do not benefit
thereby and of those who do not benefit to the same extent; 5. Trade between Member States is affected
because the conduct complained of restricts the trading opportunities of users and suppliers of bulk vitamins
in different Member States and therefore has a direct influence on the patterns of trade between Member
States.

3. Commercial Solvents v Commission Case 6/73 Court of Justice [1974]

The first European case involving a refusal to supply was Commercial Solvents v Commission [7] in 1974. The
Commission decided that abuse of dominant position existed since refusal to supply would eliminate Zoja (the
competitor) from the downstream market. The ECJ upheld the Commission’s decision and held that refusal to
supply could amount to an abuse of dominant position in certain circumstances. According to the ECJ:
[para25] “…an undertaking which has a dominant position in the market in raw material and which with the
object of reserving such raw material for manufacturing its own derivatives, refuses to supply a customer,
which is itself a manufacturer of these derivatives, and therefore risks eliminating all competition on the part
of this customer, is abusing its dominant position”.
This case is important because it was not the ‘mere’ refusal to supply that infringed Article 82 but the refusal
which ‘would amount to eliminate one of the principal manufacturers in the common market’ [para25]. The
requirement is not the elimination of all competition but only of one. However, the Court did not consider
whether the Commercial Solvent’s strategy could produce efficiencies and there was no discussion in the
judgment about the possible benefits to the consumer. It appears that the competition authorities try to
protect the situation of the ‘small’ competitor and so it might have been significant that Zoja was a small
Italian firm [8] .
4) Bayer v Commission (Export Ban/Parallel Imports) Case T-41/96 General Court [2000] ECR II-3383
Bayer AG, one of the most important chemical and pharmaceutical groups in Europe, which has subsidiaries in
all the Member States, brought proceedings before the GC challenging Decision 96/478/EC of the Commission
in Adalatin which Bayer was found in breach of Article 101(1) TFEU.
Under the trademark “Adalat” or “Adalate” Bayer AG had manufactured and marketed a range of medicinal
preparations designed to treat cardio-vascular disease. In a number of Member States the price for “Adalat”
was directly determined by the national health authorities. Between 1989 and 1993 in France and Spain the
price was 40 per cent lower than the price in the UK. The price difference had encouraged parallel imports of
“Adalat” from France and Spain to the UK. According to Bayer, sales of “Adalat” by its British subsidiary fell
by almost half between 1989 and 1993. In order to recover the lost profit Bayer AG decided to cease fulfilling
all of the increasingly large orders placed by wholesalers in Spain and France with its Spanish and French
subsidiaries. Some French and Spanish wholesalers complained to the Commission. Following its investigations
the Com- mission found that Bayer AG was in breach of Article 101(1) TFEU. The Commission decided that the
prohibition of the export to other Member States of “Adalat” from France and Spain agreed between Bayer
France and its wholesalers since 1991, and between Bayer Spain and its wholesalers since 1989, constituted a
breach of Article 101(1) TFEU. Bayer AG argued that the Commission went too far in its interpretation of the
concept of an agreement and that in fact Bayer’s unilateral conduct was outside the scope of that Article.
Issue: Was there an agreement prohibited by Art 86? None.
Held:
The GC ruled that in order to establish whether or not there was an agreement between the parties, two
elements should be considered:
• the intention of Bayer to impose an export ban; and
• the intention of the wholesalers to adhere to Bayer’s policy designed to reduce parallel imports.
these four pleas the ECJ found:
• The plea was dismissed. The ECJ found that the fact that there is a system of subsequent monitoring
and penalties may constitute an indicator of the existence of an agreement, but it does not follow
necessarily that such an agreement exists (at ¶ 82). The ECJ also found that the mere fact that the
unilateral policy of quotas implemented by Bayer, combined with the national requirements on the
wholesalers to offer a full product range, produces the same effect as an export ban does not mean
either that the manufacturer imposed such a ban or that there was an agreement prohibited
by Article 85(1) (at ¶ 87).

• The plea was dismissed. The ECJ found that the existence of an agreement within Article 81(1) can
be deduced from the conduct of the parties concerned but cannot be based on what is only the
expression of a unilateral policy of one of the parties, which can be put into effect without the
assistance of others (at ¶¶ 99 and 100). It went on to comment that to hold that an
agreement prohibited by Article 85(1) may be established simply on the basis of the expression of a
unilateral policy aimed at preventing parallel imports would have the effect of confusing the scope of
6
that provision with that of Article 86  (at ¶ 100). Importantly, the ECJ found that: 
"For an agreement within the meaning of Article 85(1) of the Treaty to be capable of being
regarded as having been concluded by tacit acceptance, it is necessary that the manifestation
of the wish of one of the contracting parties to achieve an anti-competitive goal constitute an
invitation to the other party, whether express or implied, to fulfil that goal jointly, and that
applies all the more where, as in this case, such an agreement is not at first sight in the
interest of the other party, namely the wholesalers" (at ¶ 101).
• The plea was dismissed. The ECJ found that, in the absence of an export ban, the CFI did not make an
error in law in referring to the genuine wishes of the wholesalers in seeking to determine whether or
not the wholesalers shared the intention of Bayer to prevent parallel imports (at ¶ 120).

• The plea was dismissed. The ECJ found that the mere concomitant existence of an agreement which is
in itself neutral and a measure restricting competition that has been imposed unilaterally does not
amount to an agreement prohibited by Article 85(1) (at ¶ 140). The judgment in Sandoz was
distinguished because it was found there that an export ban imposed by the manufacturer had been
tacitly accepted by the wholesalers. The ECJ also found that the Commission could not rely
7 8 9
on the AEG,  Ford  or BMW Belgium  decisions, because each of those concerned a selective
distribution system, which was not the case here.

5) ICI v Commission (Dyestuffs) Case 48/69 Court of

The Commission concluded there was a concerted practice between the undertakings and imposed a fine on
them. As a result, the undertakings challenged the Commission’s decision, arguing that the price increases
merely reflected parallel behaviour in an oligopolistic market where each producer followed the price leader.
The Court of Justice defined the term ‘concerted practice’ as:

…a form of coordination between undertakings which, without having reached the stage where an agreement
properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks
of competition.
The court’s approach to parallel behaviour in an oligopolistic market is controversial, as it will generally be
difficult to determine with any certainty what the normal conditions of the market are. Hence, it was held
that there was evidence of a concerted practice which breached Article 101.

6) A Ahlstrom Osakeyhtio and others v Commission (Wood Pulp II) Joined Cases C-89, 104, 114, 116, 117, 125,
129/85 Court of Justice [1993]

1 . Where producers established outside the Community sell directly to purchasers established in the
Community and engage in price competition in order to win orders from those customers, that
constitutes competition within the common market .

It follows that where those producers concert on the prices to be charged to their customers in the
Community and put that concertation into effect by selling at prices which are actually coordinated,
they are taking part in concertation which has the object and effect of restricting competition within
the common market within the meaning of Article 85 of the Treaty .

The Community' s jurisdiction to apply its competition rules to such conduct is covered by the
territoriality principle as universally recognized in public international law . Under the rules against
agreements, decisions or concerted practices, the decisive factor is where the agreement, decision or
concerted practice is implemented rather than where it is formed . It is immaterial whether or not
the producers had recourse to subsidiaries, agents, sub-agents, or branches within the Community in
order to make their contacts with purchasers within the Community .

2 . Where there is no contradiction between the conduct required of an undertaking from a non-
member country operating in the common market by the Community competition rules and that
required by the legislation of that non-member country, which authorizes export cartels but does not
require them to be concluded, there is, in public international law, no conflict regarding the exercise
of competing national jurisdictions which has to be resolved by applying a principle of non-
intervention .

7) Connsten & Grundig v Commission

In Consten and Grundig v Commission, the ECJ found that an exclusive distribution agreement in which the
distributor was to enjoy an absolute territorial protection restricted competition by object [14] . The Court
started by analyzing the contractual obligation imposed on the parties. In this agreement, Grundig, the
supplier, undertook not to deliver, even indirectly to third parties, products which were intended for the area
covered by the contract. This protected Consten, the distributor, from direct and indirect competition from
Grundig. Further, in its distribution agreements, Grundig prohibited all its distributors from exporting
Grinding’s products outside their contract areas. This in effect limited the sale of products from the area of
one distributor to the areas of other distributors. The analysis of the agreement in its legal context showed
that the agreement “results in the isolation of the French market and makes it possible to charge for the
products in question prices which are sheltered from all effective competition” [15] .
In its case law since Consten and Grundig v Commission, the ECJ has consistently stated that agreements
which segregate national markets and try to prevent all cross border trade restrict competition.

8) Groupement des Cartes Bancaires v Commission

CB Group was founded by the main banks active in France to ensure the interoperability of the systems for
payment and withdrawal by bank cards issued by its members (the CB system). This system allows the use of
bank cards issued by CB Group members (issuing side) for payments to all affiliated merchants and for the
withdrawal from ATMs controlled by any of the CB Group members (acquiring side). The disputed measures
consisted of certain fees to be paid by CB Group members depending on their card issuing/acquisition of
merchants ratio, to attempt to solve a free-riding problem on the issuing side. The CB Group notified the
measures to the Commission in 2002 (under Regulation 17/62). Five years later, the Commission adopted an
infringement decision finding that the purpose of the measures was to keep the price of payment cards
artificially high to the advantage of the major banks of the CB Group and to the detriment of new entrants.1
CB Group brought an appeal against the Commission decision before the GC. In its 2012 judgment,2 the GC
upheld the decision finding that the pricing measures indeed constituted restrictions of competition ‘by
object’. CB Group filed an appeal before the ECJ arguing, inter alia, that the GC erred in law in applying the
concept of restriction of competition ‘by object’. In line with Advocate General Wahl’s opinion, the ECJ upheld
the appeal, set aside the GC’s judgment, and referred the case back to the GC to examine whether the
measures at issue could be prohibited on account of their anticompetitive effects.
Ruling:
Article 101(1) TFEU prohibits agreements that have as their ‘object or effect’ the restriction of competition.
If it is revealed that an agreement has an anticompetitive object, anticompetitive effects are presumed and
there is no need to show the actual detrimental effects of the allegedly anticompetitive conduct on the
market. The ECJ initially recalled its well-known case law according to which ‘by object’ restrictions of
competition are those that are regarded, by their very nature, as being harmful to the proper functioning of
normal competition. It clarified that accordingly, only where conduct reveals a ‘sufficient degree of harm’,
such as in a pricefixing cartel, is the Commission exempted from proving that the conduct has actual
detrimental effects on the market. Based on ‘experience’, such an effects analysis would be redundant. This is
the first time that the Court has stressed the importance of past experience in the application of the ‘by
object’ concept of Article 101(1) in its case law. The Court further reiterated its prior case law by stating that
all relevant aspects need to be taken into account when assessing whether conduct can be considered
sufficiently harmful to form an ‘object’ restriction. This includes, mainly, the content of its provisions, its
objectives, and the economic and legal context of which it forms part. When determining that context, it is
also necessary to take into consideration the nature of the goods or services affected, as well as the real
conditions of the functioning and structure of the market or markets in question, it being immaterial whether
or not they relate to the relevant market. The parties’ intention may also be taken into consideration. In its
analysis of the errors of law committed by the GC, the ECJ concluded that the GC had failed to properly
ascertain whether the CB Group measures in themselves revealed such a sufficient degree of harm to
competition. The ECJ rejected the GC’s view that the concept of ‘by object’ restrictions should not be
interpreted restrictively since ‘otherwise the Commission would be exempted from the obligation to prove the
actual effects on the market of agreements which are in no way established to be, by their very nature,
harmful to the proper functioning of normal competition’. The ECJ held that the GC had erred in taking the
view that a restrictive object of the measures could be inferred from the wording alone and the mere
possibility that the measures may restrict competition. The ECJ showed a certain level of frustration that the
Commission and the GC had seemingly disregarded that the pricing measures at issue were adopted in the
context of a payment system and were to be applied in a two-sided market. It held that having acknowledged
that the measures sought to establish a certain balance between the issuing and acquiring activities of th
members of the CB Group, the GC was entitled ‘at the most to infer [...] that those measures had as their
object the imposition of a financial contribution on the members which benefit from the efforts of other
members for the purposes of developing the acquisition activities of the system’. This element could not, by its
very nature, be considered harmful to the proper functioning of normal competition.

9) Tate & Lyle plc and others v Commission Joined Cases T-202, 204, 207/98 General Court [2
https://ec.europa.eu/competition/mergers/cases/decisions/m2029_en.pdf 001] ECR II-2035

First, they maintain that the Commission made obvious errors of fact and law in holding that the practices
complained of constituted an agreement or concerted practice, and, in particular, an error in the determination
of what constitutes an agreement or concerted practice and an error in the definition of the anti-competitive
purpose of the facts complained of. Second, they consider that the Commission has failed to prove an anti-
competitive effect following those facts. Third, the applicant in Case T-204/98 maintains that the Commission
made an obvious error of law in analysing the condition concerning the effect of the conduct of the
participants in the disputed meetings on trade between Member States.

Arguments of the parties

British Sugar and Napier Brown claim that the contested decision is the consequence of an
incorrect analysis by the Commission concerning both the structure of the market and the facts
which took place between 1986 and 1990.

53 The Commission was therefore right to take the view that the purpose of those meetings was
to restrict competition by the coordination of pricing policies.

54 Moreover, the fact that only one of the participants at the meetings in question reveals its
intentions is not sufficient to exclude the possibility of an agreement or concerted practice.

10) ETA Fabriques d'Ebauches v SA DK Investment and others Case 31/85 Court of Justice [1985] ECR 3933
1 . THE PARTITIONING OF THE MARKETS BROUGHT ABOUT BY A DISTRIBUTION NETWORK UNDER
WHICH EVERY DEALER IS GRANTED AN EXCLUSIVE RIGHT TO DISTRIBUTE A PRODUCT WITHIN THE
TERRITORY ALLOTTED TO HIM AND IS PROHIBITED FROM SUPPLYING THE PRODUCT OUTSIDE THAT
TERRITORY CONSTITUTES A RESTRICTION OF COMPETITION WITHIN THE MEANING OF ARTICLE
85 ( 1 ) OF THE EEC TREATY .
2 . A GUARANTEE SCHEME UNDER WHICH A SUPPLIER OF GOODS LIMITS THE GUARANTEE TO
CUSTOMERS OF HIS EXCLUSIVE DISTRIBUTOR PLACES THE LATTER AND THE RETAILERS TO WHOM
HE SELLS IN A PRIVILEGED POSITION AS AGAINST PARALLEL IMPORTERS AND DISTRIBUTORS AND
MUST THEREFORE BE REGARDED AS HAVING THE OBJECT OR EFFECT OF RESTRICTING
COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE EEC TREATY European Economic
Community Treaty.
http://curia.europa.eu/juris/showPdf.jsf?docid=93756&doclang=EN

11) RTE & ITP v Commission (The Magill Case) Joined Cases C- 241/91Pand 242/91P Co Appellant Radio Telefis
Eireann (RTE), ITV and BBC broadcast television programming to most households in Ireland, and to 30%- 40%
of households in Northern Ireland. Judgment at ¶6. RTE publishes its own weekly television guide and ITV
publishes its weekly listings through appellant Independent Television Listings Ltd. (ITP). Id. at ¶8. At the
time the original complaint was lodged with the Commission, there was no single comprehensive weekly
television guide. Id. at ¶7.
Magill TV Guide Ltd. (Magill) attempted to fill that gap by publishing a comprehensive weekly television guide.
RTE, ITP and BBC prevented Magill from doing so by obtaining injunctions under national copyright laws. Id. at
¶10. Magill complained to the Commission. The Commission initiated a proceeding, after which it adopted a
decision finding that the copyright owners had breached Article 86 of the EEC Treaty. The Commission
ordered the copyright owners to "put an end to that breach, in particular `by supplying . . . third parties on
request and on a non-discriminatory basis with their individual advance weekly programme listings and by
permitting reproduction of those listings by such parties.'" Id. at ¶¶11-12.
The copyright owners applied to the Court of First Instance (CFI) for annulment of the Commission
decision. Id. at ¶14. The CFI ruled in favor of the Commission, and RTE and ITP appealed to the ECJ.
Intellectual Property Owners, Inc. (IPO), a Washington, D.C. organization representing the interests of owners
of intellectual property, sought and was granted permission to join the proceedings as an intervenor on behalf
of the appellants. Id. at ¶¶15-23. In June 1994, the Advocate General of the ECJ handed down an opinion
arguing that the rulings of the CFI should be overturned. The opinion rejected the view of the CFI that it was
an abuse of dominant position to exercise copyright rights in pursuit of an obviously anti-competitive aim, since
the objective of a copyright is to grant the copyright holder the ability to restrict competition. The Advocate
General also criticized the premises that apparently underlay the CFI's holding that competition law in the
European Union is supreme over national copyright laws.
Abuse of Dominant Position
Existence of an Undertaking in a Dominant Position
The Court noted that mere ownership of an intellectual property right cannot confer a dominant
position. Id. at ¶46. However, since the appellants were the only source of the information needed to allow an
undertaking like Magill that wishes to publish weekly listings to do so, appellants had a "de facto monopoly over
the information . . . . The appellants are thus in a position to prevent effective competition on the market in
weekly television magazines" and thus occupy a dominant position. Id. at ¶47.
Existence of Abuse
The court noted that "the arguments of appellants and IPO wrongly presuppose that where the conduct of an
undertaking in a dominant position consists of the exercise of a right classified by national law as `copyright,'
such conduct can never be reviewed in relation to Article 86 of the treaty." Id. at ¶48.
"[R]efusal to grant a license, even if it is the act of an undertaking holding a dominant position, cannot in itself
constitute abuse of a dominant position." Id. at ¶49. "However, it is also clear . . . that the exercise of an
exclusive right by the proprietor may, in exceptional circumstances, involve abusive conduct." Id. at ¶50.
The court agreed with the factors cited by the CFI in finding that the appellants had abused their dominant
position:
1. There was "no actual or potential substitute" for the weekly television listings published by the
appellants. Id. at ¶52. Appellants were "the only sources of the basic information on programme scheduling
which is the indispensable raw material for compiling a weekly television guide." Id. at ¶53. Appellants' refusal
to provide the information "prevented the appearance of new products . . . . Such refusal constitutes an abuse"
under Article 86. Id. at ¶54.
2. "[T]here was no justification for such refusal either in the activity of television broadcasting or in that of
publishing television magazines." Id. at ¶55.
3. Appellants thus monopolized "the secondary market of weekly television guides by excluding all competition
in that market since they denied access to the basic information which is the raw material indispensable for
the compilation of such a guide." Id. at ¶56.
Effect on Trade Between Member States
The Court agreed with the CFI that the appellants actions had "modified the structure of competition" in a
market consisting of Ireland and Northern Ireland, and thus affected trade between Ireland and the United
Kingdom. Id. at ¶70. The Court was not swayed by evidence cited by the appellants that the effect on trade
among Member States was minimal. "In order to satisfy the condition that trade between Member States
must be affected, it is not necessary that the conduct in question should in fact have substantially affected
that trade. It is sufficient to establish that the conduct is capable of having such an effect." Id. at ¶69.

12) Oscar Bronner GmbH Co. KG v Mediaprint Case C-7/97 Court of Justice [1998] ECR I-7791
In Oscar Bronner the court set out the limited circumstances in which access to a facility will be ordered. The
facts were that Oscar Bronner published a newspaper with a market share of less than 4% of the Austrian
newspaper market, while Mediaprint published two newspapers with a combined market share of almost 50%.
Mediaprint had established a nationwide system for the distribution of newspapers early in the morning, with
deliveries to the subscribers’ homes. This system, the only one of its kind, provided distribution services also
to a newspaper published by a third publisher. Oscar Bronner argued that the distribution system should be
regarded as an essential facility, as it lacked the ability to establish a competing system, and that Mediaprint’s
refusal to distribute Bronner’s newspaper should be regarded as an abuse of a dominant position [16] .
The ECJ when asked for a preliminary ruling in [para41] stated four factors which should exist in order for a
refusal to be an abuse. First, the refusal would have to be likely to eliminate all competition in the downstream
market from the person requesting access [para38]. Second, the refusal must be incapable of objective
justification [para41]. Third, the access to the facility must be indispensable to carrying on the other person’s
business and finally, there must be no actual or potential substitute for it. In this case the criteria were not
fulfilled. The Court emphasized especially on the fact that access must be indispensable and not desirable or
convenient. In [para45-46] the Court said that it would only be indispensable if it was not economically viable
to create a substitute for the facility. In his opinion A-G Jacobs said in [para57-58] that there would be a
“reduction of the incentive to invest to essential facilities” if they were required to share them with all
competitors and that the interest of Article [82] is to protect the interests of consumers rather that the
interest of competitors. [17]
In the Court’s view, use of Mediaprint’s home delivery service was not indispensable since there where other
means of distributing daily newspaper e.g. through shops or post [para44] and so the behavior of Mediaprint
did not amount to an abuse. However, the Court also mentioned that sometimes duplication can be physically
impossible such as in the case of a port or an airport or a second rail network [18] 

13) IMS Health GmbH & Co. OHG v NDC Health GmbH KG C-418/01 Court of Justice [2000] ECR I-5039
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62001CJ0418
Summary of the Judgment
1.        Competition – Community rules – Application by national courts – Assessment of an
agreement or practice which has been examined by the Commission or has already been the
subject of a Commission decision – Conditions

(Arts 81 EC and 82 EC)

2.        Competition – Dominant position – Abuse – Refusal of an undertaking in a dominant

position to allow another undertaking access to a product or service that is necessary for its
business – Assessment of whether the product or service at issue is indispensable – Criteria –
Licence to use a brick structure for supplying regional sales data for pharmaceutical products

(Art. 82 EC)

3.        Competition – Dominant position – Copyright – Rights over a brick structure used to

supply regional sales data for pharmaceutical products – Refusal to grant a licence to another
undertaking – Abuse – Conditions
 (Art. 82 EC)

1.        Where the national courts give a ruling on agreements or practices which may
subsequently be the subject of a decision by the Commission, they must avoid taking decisions
which conflict with those taken or envisaged by the Commission in the implementation of
Articles 81 and 82 EC.

(see para. 19)

2.        In the assessment of the abusive character of a dominant position, in order to determine
whether a product or service is indispensable for enabling an undertaking to carry on business in
a particular market, it must be determined whether there are products or services which
constitute alternative solutions, even if they are less advantageous, and whether there are
technical, legal or economic obstacles capable of making it impossible or at least unreasonably
difficult for any undertaking seeking to operate in the market to create, possibly in cooperation
with other operators, alternative products or services. In order to accept the existence of
economic obstacles, it must be established, at the very least, that the creation of those
products or services is not economically viable for production on a scale comparable to that of
the undertaking which controls the existing product or service.

It follows that, for the purposes of examining whether the refusal by an undertaking in a
dominant position to grant a licence for a brick structure protected by an intellectual property
right which it owns is abusive, the degree of participation by users in the development of that
structure and the outlay, particularly in terms of cost, on the part of potential users in order to
purchase studies on regional sales of pharmaceutical products presented on the basis of an
alternative structure are factors which must be taken into consideration in order to determine
whether the protected structure is indispensable to the marketing of studies of that kind.

(see paras 28, 30, operative part 1)

3.        The refusal by an undertaking which holds a dominant position and owns an intellectual
property right in a brick structure indispensable to the presentation of regional sales data on
pharmaceutical products in a Member State to grant a licence to use that structure to another
undertaking, which also wishes to provide such data in the same Member State, constitutes an
abuse of a dominant position within the meaning of Article 82 EC where the following conditions
are fulfilled:

- the undertaking which requested the licence intends to offer, on the market for the supply of
the data in question, new products or services not offered by the owner of the intellectual
property right and for which there is a potential consumer demand;

- the refusal is not justified by objective considerations;

- the refusal is such as to reserve to the owner of the intellectual property right the market
for the supply of data on sales of pharmaceutical products in the Member State concerned by
eliminating all competition on that market.

14) Microsoft Corporation v Commission - Tying and Bundling Case T-201/04 General Court [2007] ECR II-3601
Proceedings brought against Microsoft by commission on basis that Microsoft had abused its position of
dominance on 2 accounts: 1. because they refused to provide info to competitors that would allow inter-
operability between Microsoft servers. 2. because they had bundled the windows media player with Microsoft
operating system so that anyone who bought a computer with Microsoft word installed would also get the
media player. 

Rule:
Summary

By the Commission’s decision of 24 March 2004 under Article 82 (Case COMP/C-3/37.792), Microsoft was
fined almost €500m. The following remedies, amongst others, were also ordered:

• By way of remedy for its abusive refusal to make the interoperability information available, i.e. certain
communications protocols, but not source code, Microsoft was ordered to grant licences on reasonable
and non-discriminatory terms to interested undertakings for the purpose of developing and
distributing work group server operating system products
• By way of remedy for abusive tying, Microsoft was ordered to offer a fully functioning version of the
Windows Client PC operating system which did not incorporate Windows Media Player (previously it
had made the former conditional on the simultaneous acquisition of the latter)
Microsoft have appealed the decision but, in these interim proceedings, also applied for interim measures to
stay the above two remedies. The President of the CFI dismissed the application. In relation to both issues,
the President held that Microsoft submissions could not be regarded as prima facie unfounded and, therefore,
the prima facie case for granting the stay was satisfied. However, Microsoft did not prove that the stay was a
matter of urgency in that it would cause the company serious and irreparable harm. Since the conditions for
granting the stay were cumulative, the application was dismissed.

Interoperability issue

Microsoft’s attack on the Commission’s decision centred on the finding of the abusive nature of the refusal to
make the interoperability information available, which in turn, raised a number of questions including whether
the requirements laid down by the ECJ in IMS Health v. NDC Health [2004] All ER (EC) 813 were satisfied.
Two issues in particular arose:

• Microsoft denied that use of the interoperability information was indispensable for enabling potential
competitors to gain access to the market in which Microsoft occupied a dominant position (which also
raised issues of decompilation under Article 6 of the Directive on the protection of computer
programs)
• Microsoft submitted that its refusal to licence was objectively justified on the grounds of its IP
rights. The company argued that by relying on its IP rights it did not have to disclose the
interoperability information even if “exceptional circumstances” existed involving abusive conduct.
Microsoft further submitted that the Commission had incorrectly weighed up the competing interests;
its incentive to innovate versus the impact on the level of innovation of the whole industry. The
President held that Microsoft’s arguments could not be rejected outright
In relation to the question of urgency, the President found that most of Microsoft’s concerns could be dealt
with in the licences granted to its competitors, for example, they could contain contractual safeguards
concerning confidentiality and the use of the information pending the decision in the main action.

The tying issue

Microsoft disputed the factual basis for the Commission’s decision and maintained that Windows and its media
functionality were not two distinct products. The company also submitted that:

• The Commission applied a new and speculative theory on tying in concluding that the ubiquitous
distribution of media functionality in Windows will compel content providers to encode their content
almost exclusively in Windows Media formats which will, in turn, eventually drive all competing media
players out of the market and then, indirectly, oblige consumers to use only Windows multimedia
functionality, i.e. it will have a foreclosure effect in that it will tip the market in favour of Microsoft.
This ignored the realities of the market in which consumers were able to obtain third party media
players through the Internet, sometimes free of charge. The President described the Commission’s
analysis as, in part, “prospective”. The issue raised was complex and could not be resolved in interim
proceedings
• The Commission should have given greater weight to the advantages flowing from the Windows
operating system design concept. The President considered this to be an intricate question, involving
consideration of whether the positive effects associated with the increasing standardisation of
certain products constituted objective justification or whether, as the Commission contended, the
positive effects of standardisation should only be accepted when they resulted from the operation of
the competitive process or from decisions taken by standardisation bodies.
Immediate consequences

Microsoft has set up a very basic web page for those interested in applying for a licence over the
communications protocols (see www.microsoft.com/mscorp/legal/eudecision/). It has announced that it will
make the version of Windows without the Media Player code available to PC manufacturers in January which, in
turn, will mean that it will be available to resellers in February. Microsoft has also stated that the two versions
will probably be sold at the same price.