Case C‑23/14

Post Danmark A/S

v

Konkurrencerådet

(Request for a preliminary ruling

from the Sø- og Handelsretten)

‛Reference for a preliminary ruling — Article 82 EC — Abuse of a dominant position — Market for the distribution of bulk mail — Direct advertising mail — Retroactive rebate scheme — Exclusionary effect — ‘As-efficient-competitor’ test — Degree of likelihood and seriousness of an anti-competitive effect’

Summary — Judgment of the Court (Second Chamber), 6 October 2015

1. Dominant position — Abuse — Contracts for the distribution of bulk mail containing a system of conditional and retroactive rebates granted over a long period — Whether abusive with an exclusionary effect — Criteria for assessment

   (Art. 82 EC)

2. Dominant position — Abuse — Concept — Objective concept referring to conduct such as to influence the structure of the market and having the effect of hindering the maintenance or the growth of competition

   (Art. 82 EC)

3. Dominant position — Abuse — Quantity rebate — Loyalty rebate — Classification — Contracts for the distribution of bulk mail containing loyalty rebates — Whether abusive — Criteria for assessment

   (Art. 82 EC)

4. Dominant position — Abuse — Non-discriminatory rebates — No impact on possible exclusionary effect

   (Art. 82 EC)

5. Dominant position — Abuse — Objective justification — Conditions — Extent of the burden of proof

   (Art. 82 EC)

6. Dominant position — Abuse — Likelihood of restricting competition and foreclosure effect — Criteria for assessment — No obligation to have recourse to the ‘as-efficient-competitor’ test

   (Art. 82 EC)

7. Dominant position — Abuse — Anti-competitive effect — Whether potential effect sufficient — Actual or likely exclusion of competitors — Criteria for assessment

   (Art. 82 EC)

8. Dominant position — Abuse — Anti-competitive effect — No requirement that effect be serious or appreciable

   (Art. 82 EC)

1.  In order to determine whether a rebate scheme provided for in contracts for the distribution of bulk mail concluded between an undertaking in a dominant position and its customers, a scheme characterised by:

   —	a scale with rates from 6% to 16%,

   —	conditionality, in the sense that, at the end of a reference period, the undertaking in a dominant position makes an adjustment where the quantities of mail presented are not the same as those initially estimated, and

   —	retroactivity, in the sense that, where the threshold of mailings initially set is exceeded, the rebate rate applied at the end of the year applies to all mailings presented during the period concerned and not only to mailings exceeding the threshold initially estimated,

   and implemented by an undertaking in a dominant position is capable of having an exclusionary effect on the market contrary to Article 82 EC, it is necessary to examine all the circumstances of the case, in particular, the criteria and rules governing the grant of the rebates, the extent of the dominant position of the undertaking concerned and the particular conditions of competition prevailing on the relevant market. The fact that the rebate scheme covers the majority of customers on the market may constitute a useful indication as to the extent of that practice and its impact on the market, which may bear out the likelihood of an anti-competitive exclusionary effect.

   In that regard, in the first place, 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. 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. Consequently, such a rebate scheme is capable of making it easier for the dominant undertaking to tie its own customers to itself and attract the customers of its competitors, and thus to secure the suction to itself of the part of demand subject to competition on the relevant market. That suction effect is further enhanced where the rebates apply without distinction both to the contestable part of demand and to the non-contestable part of demand covered by a statutory monopoly.

   In the second place, 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. 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.

   In those circumstances, a rebate scheme operated by an undertaking, 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 paras 23-25, 33-35, 40, 42, 50, operative part 1)

2.  See the text of the decision.

   (see para. 26)

3.  As regards rebates granted by an undertaking in a dominant position to customers, 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. In that regard, a scheme that is not coupled with an obligation for, or promise by, purchasers to obtain all or a given proportion of their supplies from the undertaking in a dominant position is to be distinguished from such loyalty rebates.

   A rebate scheme cannot be regarded as a simple quantity rebate where the rebates at issue are granted not in respect of each individual order, thus corresponding to the cost savings made by the supplier, but on the basis of the aggregate orders placed over a given period. In those circumstances, in order to determine whether the undertaking in a dominant position has abused that position by applying such a rebate scheme, 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.

   (see paras 27-29, 64)

4.  See the text of the decision.

   (see para. 38)

5.  See the text of the decision.

   (see paras 47-49)

6.  It is not possible to infer from Article 82 EC that there is a legal obligation requiring a finding to the effect that a rebate scheme operated by a dominant undertaking is abusive to be based always on the as-efficient-competitor test. Nevertheless, that conclusion ought not to have the effect of excluding, on principle, recourse to the as-efficient-competitor test in cases involving a rebate scheme for the purposes of examining its compatibility with Article 82 EC.

   On the other hand, in a situation characterised by the holding by the dominant undertaking of a very large market share and by structural advantages conferred, inter alia, by that undertaking’s statutory monopoly on a very large part of relevant market, applying the as-efficient-competitor test is of no relevance inasmuch as the structure of the market makes the emergence of an as-efficient competitor practically impossible.

   Furthermore, in a market access to which is protected by high barriers, the presence of a less efficient competitor might contribute to intensifying the competitive pressure on that market and, therefore, to exerting a constraint on the conduct of the dominant undertaking.

   The as-efficient-competitor test must thus be regarded as one tool amongst others for the purposes of assessing whether there is an abuse of a dominant position in the context of a rebate scheme.

   (see paras 57-62, operative part 2)

7.  Only dominant undertakings whose conduct is likely to have an anti-competitive effect on the market fall within the scope of Article 82 EC. In that regard, the assessment of whether a rebate scheme is capable of restricting competition must be carried out in the light of all relevant circumstances, including the rules and criteria governing the grant of the rebates, the number of customers concerned and the characteristics of the market on which the dominant undertaking operates. 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.

   (see paras 67-69, 74, operative part 3)

8.  As regards 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, 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. Consequently, a dominant undertaking has a special responsibility not to allow its behaviour to impair genuine, undistorted competition on the internal market.

   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.

   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.

   (see paras 70-74, operative part 3)