1) 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 that provision
with that of Article 866 (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 on the AEG,7 Ford8 or BMW
Belgium9 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
bvious errors of fact and law in holding that the practices complained of constituted an 001] ECR II-
ar, an error in the2035
determination of what constitutes an agreement or concerted practice
ive purpose of the facts complained of. Second, they consider that the Commission has
wing those facts. Third, the applicant in Case T-204/98 maintains that the Commission
ondition concerning the effect of the conduct of the participants in the disputed meetings
on trade between Member States.
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.