Post Danmark A/S v Konkurrencerådet.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2012:172
• Date: 27 March 2012
• Docket Number: C‑209/10
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

27 March 2012 ( *1 )

‛(Article 82 EC — Postal undertaking with a dominant position and subject to a universal service obligation with regard to certain addressed mail — Low prices charged to certain former customers of a competitor — No evidence relating to intention — Price discrimination — Selectively low prices — Actual or likely exclusion of a competitor — Effect on competition and, thereby, on consumers — Objective justification)’

In Case C-209/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Højesteret (Denmark), made by decision of 27 April 2010, received at the Court on 3 May 2010, in the proceedings

Post Danmark A/S

v

Konkurrencerådet,

intervener:

Forbruger-Kontakt a-s,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot, Presidents of Chambers, A. Rosas, A. Ó Caoimh (Rapporteur), L. Bay Larsen, T. von Danwitz, A. Arabadjiev and E. Jarašiūnas, Judges,

Advocate General: P. Mengozzi,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 1 March 2011,

after considering the observations submitted on behalf of:

— Post Danmark A/S, by S. Zinck, advokat, T. Lübbig, Rechtsanwalt, and N. Westergaard, advokat,

— Forbruger-Kontakt a-s, by P. Stig Jakobsen, advokat,

— the Danish Government, by C. Vang, acting as Agent, assisted by O. Koktvedgaard, advokat,

— the Czech Government, by M. Smolek, T. Müller and V. Štencel, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, assisted by F. Arena, avvocato dello Stato,

— the European Commission, by B. Gencarelli, U. Nielsen and K. Mojzesowicz, acting as Agents,

— the EFTA Surveillance Authority, by X. Lewis and M. Schneider, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 May 2011,

gives the following

Judgment

1 The request for a preliminary ruling concerns the interpretation of Article 82 EC.

2 This reference has been made in proceedings between Post Danmark A/S (‘Post Danmark’) and the Konkurrencerådet (competition council) concerning the prices Post Danmark charged to three former customers of its competitor, Forbruger-Kontakt a-s (‘Forbruger-Kontakt’).

The dispute in the main proceedings and the questions referred for a preliminary ruling

3 In Denmark, Post Danmark and Forbruger-Kontakt are the two largest undertakings in the unaddressed mail sector (brochures, telephone directories, guides, local and regional newspapers etc.). According to the order for reference, this sector is entirely liberalised and is not covered by the Danish legislation on postal services. It is common ground in the main proceedings that the relevant market can be considered to be that of the distribution of unaddressed mail in Denmark.

4 At the material time, Post Danmark enjoyed a monopoly in the delivery of addressed letters and parcels not exceeding a certain weight, which, on account of the sole right of distribution, was allied with a universal service obligation to deliver addressed mail under that weight. For that purpose, Post Danmark had a network that covered the national territory in its entirety and that was also used for the distribution of unaddressed mail.

5 The principal activity of Forbruger-Kontakt, part of the press group Søndagsavisen a-s, is the distribution of unaddressed mail. At the material time, it had created a distribution network covering almost the entire national territory, chiefly through the acquisition of smaller distribution undertakings.

6 Until 2004, the SuperBest, Spar and Coop groups, undertakings in the supermarket sector, were major customers of Forbruger-Kontakt. Towards the end of 2003, Post Danmark concluded contracts with those three groups for the distribution of their unaddressed mail from 1 January 2004.

7 Before concluding a contract with Post Danmark, the Coop group had conducted negotiations both with that undertaking and with Forbruger-Kontakt. The offers made by those two operators were comparable in terms of price, Post Danmark’s being only marginally lower.

8 Following a complaint made by Forbruger-Kontakt, by decision of 29 September 2004 the Konkurrencerådet held that Post Danmark had abused its dominant position on the Danish market for the distribution of unaddressed mail, practising a targeted policy of reductions designed to ensure its customers’ loyalty, by, first, not putting its customers on an equal footing in terms of rates and rebates (which the Konkurrencerådet called ‘secondary-line price discrimination’) and, secondly, charging Forbruger-Kontakt’s former customers rates different from those it charged its own pre-existing customers without being able to justify those significant differences in its rate and rebate conditions by considerations relating to its costs (a practice described by the Konkurrencerådet as ‘primary-line price discrimination’).

9 The court making the reference states that, while the price offered to the Coop group did not allow Post Danmark to cover its ‘average total costs’, it did allow it to cover its ‘average incremental costs’.

10 According to Post Danmark, the contract concluded with that group made it possible to achieve considerable economies of scale, due in particular to the fact that that contract concerned five of the group’s brands and thus up to five items per household. In this connection, it is stated in the order for reference that the costs of the distribution by Post Danmark of unaddressed mail fell by DKK 0.13 per item from 2003 to 2004.

11 The Konkurrencerådet considered nonetheless that, as regards cost analysis, that fact had no effect on the overall appraisal of the pricing policy Post Danmark applied to the Coop group. First, a criterion based on economies of scale was absent from Post Danmark’s general terms regarding prices and reductions, rebates and discounts and, secondly, the marginal reduction in the cost of distributing several items of mail to one and the same household was not linked to the fact that the items were sent by one and the same sender.

12 By decision of 1 July 2005, the Konkurrenceankenævnet (competition appeals tribunal) upheld the Konkurrencerådet’s decision of 29 September 2004.

13 In addition, the Konkurrenceankenævnet upheld a decision of the Konkurrencerådet of 24 November 2004 finding that it could not be established that Post Danmark had intentionally sought to eliminate competition and that, accordingly, it had not abused its dominant position on the market for the distribution of unaddressed mail by the practice of predatory pricing.

14 Those decisions of the Konkurrencerådet and the Konkurrenceankenævnet became final in so far as they found, on the one hand, that there was no abuse of a dominant position as a result of predatory pricing and, on the other, that there was such abuse by reason of the policy of ‘secondary-line price discrimination’ with respect to Post Danmark’s customers other than the SuperBest, Spar and Coop groups.

15 Inasmuch as those decisions concerned an abuse of a dominant position by means of selectively low prices applied to those groups, they were challenged by Post Danmark before the Østre Landsret (eastern regional court).

16 By decision of 21 December 2007, that court upheld those decisions of the Konkurrencerådet and Konkurrenceankenævnet in so far as they found that Post Danmark had abused its dominant position on the Danish market for the distribution of unaddressed mail by pursuing, in 2003 and 2004, a pricing policy for former customers of Forbruger-Kontakt different from its policy for its pre-existing customers, without being able to justify that difference on cost-related grounds.

17 Post Danmark brought an appeal against that decision of the Østre Landsret before the court making the reference. In particular, it claimed that, according to the criteria stemming from the judgment in Case C-62/86 AKZO v Commission [1991] ECR I-3359, as ‘adapted’ by Commission Decision 2001/354/EC of 20 March 2001 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/35.141 — Deutsche Post AG) (OJ 2001 L 125, p. 27), the prices offered to the Coop group may be considered to amount to abuse only if an intention to drive a...