EN
E-004077/2011
Answer given by Mr Almunia
on behalf of the Commission
(7.7.2011)
According to established case-law, Article 102 TFEU does not prohibit the acquisition of a dominant
position but only its abuse. Moreover, when a company holds a dominant position, its behaviour in
the market may be scrutinised for compatibility with Article 102.
The Guidance Paper on Enforcement Priorities 1 to which the Honourable Member refers sets out the
priorities that guide the Commission's action in applying Article 102 TFEU to exclusionary conduct by
dominant companies. That paper makes it clear that in applying Article 102 TFEU to exclusionary
conduct by dominant undertakings, the Commission will focus on those types of conduct that are
most harmful to consumers2. However, the Guidance Paper on Enforcement Priorities is not intended
to constitute a statement of the law and is without prejudice to the interpretation of Article 102 TFEU
by the European Union Courts3. The announcement that Commission intervention against certain
exclusionary practices will be an enforcement priority cannot be taken as an indication of the
lawfulness of other behaviour having been found in breach of Article 102 TFEU according to the caselaw.
According to the Guidance Paper on Enforcement Priorities, it forms part of the Commission's
priorities to take measures not only in order to identify and prevent actual anti-competitive effects but
also likely anti-competitive effects. Moreover, in line with the case-law, the paper points out that,
where the Commission establishes actual or likely negative effects, it will consider claims by the
dominant undertaking that its conduct is objectively justified, including by showing that the potential
anti-competitive effects are counterbalanced, or outweighed, by advantages in terms of efficiency
which benefit consumers4. In addition, the Guidance Paper on Enforcement Priorities stipulates that
practices that are manifestly outside the scope of competition on the merits, such as financial
incentives granted to customers or distributors for delaying the launch of competitors' products will
usually be classified abusive without conducting a detailed assessment of their likely anti-competitive
effects5.
Thus, the Commission does generally examine whether dominant undertakings' conduct is likely to
prejudice consumers or not. This is true for dominant undertakings' behaviour in any markets,
including high-tech markets. That said, it should be recalled that Article 102 TFEU is not only
concerned with practices which may cause damage to consumers directly6. As the European Court of
Justice has recently explained, this provision "refers not only to practices which may cause damage to
consumers directly, but also to those which are detrimental to them through their impact on
competition"7. Thus the emphasis of the Commission's enforcement activity in relation to exclusionary
1
Guidance Paper on the Commission's enforcement priorities in applying Article 102 TFEU to abusive
exclusionary conduct by dominant undertakings, OJ C 45, 24.2.2009
2
The concept of "consumers" encompasses all direct or indirect users of the products affected by the conduct,
including intermediate producers that use the products as an input, as well as distributors and final
consumers
both of the immediate product and of products provided by intermediate producers (see Guidance Paper on
Enforcement Priorities, paragraph 19, footnote 2).
3
Ibid, paragraph 3.
4
Case C-95/04 P British Airways plc v Commission, para 86; Guidance Paper on the Commission's
enforcement priorities in applying Article 102 TFEU, paragraphs 28-31.
5
See Guidance paper on Enforcement Priorities, paragraph 22.
6
Case 6/72 Europemballage Corporation and Continental Can Company Inc v Commission of the European
Communities, para 26.
7
Case C-280/08 Deutsche Telekom AG v Commission, judgment of 14 October 2010, paragraph 176. See
also Case C-52/09 P TeliaSonera, judgment of 17 February 2011, not yet reported, paragraphs 21-22 (noting
that the function of the competition rules of the Treaty, [including Article 102 TFEU] is to "prevent competition
from being distorted to the detriment of the public interest, individual undertakings and consumers, thereby
ensuring the well-being of the European Union").
conduct is on safeguarding the competitive process in the internal market and ensuring that
undertakings which hold a dominant position do not exclude their competitors by other means than
competing on the merits8.
As regards the risk of imposing unfair fines on companies operating in fast developing markets, to
which the Honourable Member refers, it is necessary to point out that an undertaking would only be
found dominant if it has held significant market power over time. If in a given market, companies
quickly lose market shares or easily enter the market, then it would be difficult to establish that any of
the companies operating in that market holds market power amounting to dominance. And if
dominance is not established, there is no risk of finding an abuse and imposition of fines under Article
102.
As regards the investigation of alleged anticompetitive practices by Google, the Commission has
received several complaints which are currently under investigation. However, as the investigation is
on-going, the Commission is not in a position at this stage to comment on the substance of that case.
That said, it should be noted that launching an investigation or opening formal antitrust proceedings
does not mean that the Commission has evidence of anti-competitive practices or that it will adopt a
prohibition decision.
8
Guidance on the Commission's enforcement priorities in applying Article 102 TFEU to abusive exclusionary
conduct by dominant undertakings, paragraph 6. See also Case 8/08 T-Mobile Netherlands [2009] ECR I4529, paragraph 38 (noting that that "the competition rules of the Treaty are designed to protect not only the
immediate interests of individual competitors or consumers but also to protect the structure of the market and
thus competition as such") .