When does different trading terms amount to abuse of dominance?
To what extent must a trading partner be placed at competitive disadvantage for abuse of dominance to exist? This question has recently been addressed by the European Court of Justice.
The Court’s decision (reference for a preliminary ruling) of 19 April 2018 – MEO vs Autoridade da Concorréncia and GDA
By student intern Mathias Rønø Bove
Initially, the action was brought because Serviços de Comunicações e Multimédia SA (MEO) – a television content provider – was asked by Cooperativa de Gestão dos Direitos dos Artistas Intérpretes ou Executantes CRL (GDA) to pay a higher price for transmitting television than some of GDA’s other customers. The price charged by GDA had been set by an arbitration decision, because the parties were unable to reach an agreement by negotiation.
MEO subsequently complained of the higher price to the Portuguese competition authority (Autoridade da Concorréncia), claiming that GDA had abused its dominant position by applying discriminatory prices. The Portuguese competition authority investigated the case, but ultimately decided to take no further action, finding that the different terms did not deteriorate MEO’s competitive position.
MEO subsequently appealed the decision to the Portuguese first instance court dealing with competition law issues, which then referred the matter to the European Court of Justice for a preliminary ruling on the concept of “competitive disadvantage” within the meaning of article 102(d) TFEU.
The Court held that a finding of such “competitive disadvantage” contrary to article 102(c) TFEU does not require proof of a significant and quantifiable distortion of competition. Instead, such finding must be based on an analysis of all the relevant circumstances leading to the conclusion that the differentiated terms have an effect on the costs, profits or any other relevant interest of the parties, and that they are capable of affecting the parties’ competitive situation.
Contact
