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10 Competition Law cases you

should know about

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Case 1: Favouring as abuse of dominance

Favouring one’s own services is a novel type of abuse of dominance only recently

prohibited by the European Commission in the Google Shopping case.

However, one year even before the Commission imposed the highest antitrust fine

ever on Google, a UK High Court judge ruled in a similar case that the alleged

systematic promotion by Google of its own online map services did not have an

appreciable effect on competition.

Case law in this area may still evolve, as the EU Courts in Luxembourg have not yet

been involved to set a clear precedent.

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Case 2: Network co-investment

In this case, the Italian competition authority is assessing which conditions would make

acceptable a proposed joint rollout of a fibre network by competing telecoms operators,

Telecom Italia and Fastweb.

The European Commission’s proposal to give regulatory relief to very high-capacity networks

deployed under co-investment is one of the most debated issues in the ongoing review of the

EU telecoms regulatory framework.

This pending Italian case will provide an intriguing benchmark of the conditions that

competition authorities are likely to require to ensure that such cooperation agreements do not

restrict competition in breach of article 101 TFEU.

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Case 3: Predatory pricing

In this third highlighted case (in the category of predatory pricing), the Cypriot

competition authority considered that telecoms incumbent CYTA relied on its

dominance in the DSL broadband access market to pre-empt the neighbouring,

competitive, pay TV market with predatory prices (leveraging).

This is a rare example of a case where predatory pricing and its anticompetitive

effect took place in a related market.

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Case 4: Abuse of exclusive broadcasting rights

The fourth highlighted case (in the category of discrimination) offers an illustrative

example of how a vertically integrated pay TV distributor, in this case Swisscom,

may abuse its exclusive broadcasting rights by discriminating among competing pay

TV distributors.

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Case 5: Using competition law to negotiate prices

In this fifth highlighted case (in the category of exploitative abuses), Vodafone

claims that duct access fees negotiated with Telekom Deutschland more than ten

years ago are excessive, compared with Telekom’s current regulated fees and fees

in other EU countries.

Lower courts initially considered that commercially negotiated fees cannot be

abusive, but a higher court recalled that no such argument can shield a potential

abuse from the application of competition rules. The case is still pending…

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Case 6: Margin squeeze & NCA dilemma of cost data

In this sixth case, the Hungarian competition authority found that postal

incumbent Magyar Posta had not abused its dominance in the market for mailbox rental

services by squeezing its competitors’ margins in the downstream market for mailbox-

related services.

In particular, there was no detailed cost data available from Magyar Posta that could

enable the NCA to separate the costs of mailbox rental services from other services

which shared common costs. The NCA had to base its assessment on market conditions,

the characteristics of the behaviour and its potential exclusionary effects.

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Case 7: Temporary takeover of a failing firm

In this seventh case (from the category of mergers), the Croatian competition

authority gave a conditional approval to the acquisition by incumbent Hrvatski

Telekom of Optima, a competing fixed operator on the brink of bankruptcy (a failing

firm).

Exceptionally, the concentration was only authorised for a four-year period, later

prolonged to seven years.

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Case 8: Rebates granted by dominant firms

In this case, an appeal court annulled the decision of the Luxembourg competition

authority, fining incumbent operator EPT €2.52m for anticompetitive rebates,

because the authority had not made a proper assessment of their potential

anticompetitive effect.

The appeal court made an interesting analysis of how to apply the European

Commission’s 2009 guidance on abuse of dominance to bundled (or multi-product)

rebates.

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Case 9: Anticompetitive bundling

Although bundling is common practice in the telecoms sector, this ninth case (in the tying and

bundling category) shows that it can be considered anticompetitive in certain circumstances.

In this case, the Austrian competition authority found that the incumbent operator abused its

dominant position by changing its fixed telephony tariff structure to drive customers towards its

inexpensive bundles of line rental and calls.

The case also evidences the well-established principle that decisions taken by telecoms

authorities do not shield operators from the application of competition law.

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Case 10: Refusal to supply

This tenth and final case (in the refusal to deal category) illustrates how a vertically

integrated incumbent operator cannot protect its (liberalised) retail business from

competition by denying access to an essential wholesale input that it controls.

In this case, the Spanish postal incumbent refused without any objective

justification to deliver administrative notifications injected into its network by

alternative postal operators, effectively preventing them from winning contracts from

public administrations.

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