C-247/86
ECLI:EU:C:1988:267
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ALSATEL v NOVASAM
OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 31 May 1988 *
Mr President, judgments were then given, one on 17 Members of the Court, September and the other on 10 December 1986, in which, in the light of the fact that Alsatel asks its customers to sign contracts for the rental and maintenance of telephone equipment for a term of 15 years, that the 1. The tribunal de grande instance, contract is automatically extended for a Strasbourg, wishes to ascertain whether the period equivalent to its initial duration if, as fact that a telecommunications installer a result of modifications to the installation, which has a leading share of a regional the initial rental is increased by 25 % or market in a Member State imposes on its more, that as regards all changes, moves, customers standard-form contracts contain extensions, putting lines into service and, in ing certain clauses which are oppressive general, all modifications to the installation constitutes an abuse of a dominant position the customer may not turn to another within the meaning of Article 86 of the EEC supplier, and that as a result of that Treaty. prohibition Alsatel may, in the event of modifications to the installation, fix the price of additional equipment and lines unilaterally, the national court asks whether, in view of Alsatel's major share of the By summons of 19 July 1982, Société alsa regional market, those contracts show an cienne et lorraine de télécommunications abuse of a dominant position within the et d'électronique ('Alsatel') instituted meaning of Article 86 of the EEC Treaty. proceedings against Novasam SA, a Paris-based employment agency, for payment of a penalty amounting to FF 125 834. Novasam, it claimed, was liable to pay that sum as compensation for termi nating before their expiry three contracts for In these proceedings, written observations the rental and maintenance of telephone were submitted and oral argument was equipment installed by Alsatel at Novasam's presented by the parties to the main branches in Strasbourg, Mulhouse and proceedings and the Commission of the Colmar. The defendant objected on the European Communities. ground, inter alia, that the contracts in question were null and void because some of their clauses were unlawful.
2. I should point out in the first place that in France the market in telecommunications, By interlocutory order of 2 May 1985 the from the production to the supply of instal tribunal asked the parties to state their views lations and equipment in general, is subject on the conformity of those contracts with to a State monopoly. In particular, Article national and Community law. Two L 33 of the Post and Telecommunications
* Translated from the Italian.
OPINION OF MR MANCINI — CASE 247/86
Code provides that 'no telecommunications As regards the choice between rental and installation may be established or used for purchase, it would appear, again according the transmission of communications except to the Commission, that authorized by the Minister for Posts and Telecommuni installers are able to sell installations of any cations or with his authorization'. kind and to provide the necessary main tenance. However, rental of equipment and the attendant maintenance service can be offered only by installers whose financial resources permit them to acquire the requisite equipment and to depreciate it However, the postal and telecommuni over the rental period. For their part, the cations authorities do not operate the postal and telecommunications authorities monopoly in an exclusive manner but offer only contracts of the latter type. delegate to several firms, within the terri torial limits of one or more départements, the manufacture, establishment and main tenance of telephone installations. Obviously, in order to carry on their acti 3. Let me now turn to the main aspects of vities the undertakings concerned — and, in the dispute pending before the national the case of producers, the installations as court. The reference for a ruling does not well — must obtain a specific administrative throw any light on Alsatel's legal and authorization. Furthermore, whilst 'auth economic ties. The Commission, for its part, orized installers' are free to choose any type merely states that Alsatel, along with 15 of installation, provided it is properly other undertakings, forms part of a licensed, 'authorized manufacturers' may consortium called Intertel, whose object is put into service only telephone exchanges to guarantee its own members the best produced by them. business conditions for the procurement of equipment.
A subscriber — for instance a company like Novasam — which wishes to equip its head The information supplied by Novasam is quarters with a telephone exchange may more significant, though it has been flatly choose between purchasing and renting the denied by Alsatel. According to Novasam, installation. For those purposes, according Alsatel is an agent and affiliate of Télic- to the information provided by the Alcatel, a world leader in corporate tele Commission, it is necessary to distinguish communications, which in turn is controlled between simple installations, consisting of by Compagnie générale d'électricité. The one or two lines, and complex installations, undertakings belonging to that group which are equipped with several lines and engage in concerted practices, including the have other technical advantages. In order to imposition of contracts similar to those obtain complex installations it was formerly which Novasam had to sign. necessary to turn to authorized installers. For some years, however, the postal and telecommunications authorities have also been providing complex equipment on particularly advantageous terms. The sector There is no dispute, on the other hand — at in which the public authorities and private least in this case — as to the nature and the undertakings compete is therefore tending subject-matter of those contracts. They are to expand (Commission observations, p. 4). concerned with the rental and maintenance
ALSATEL v NOVASAM
of three telephone exchanges which, That contention, as summarized in those according to the Commission, belong to the terms, is unacceptable. I should point out simplest category of complex equipment. that in the main proceedings Novasam Those installations, produced largely by maintained that Article 85 was applicable to authorized manufacturers, are rented out by this case and that the national court did not the postal and telecommunications auth consider it appropriate to ask the Court of orities and by private installers on Justice for guidance on that point, not even competitive terms. in the decision of 10 September 1986 given by the national court at the express request of the defendant.
In those circumstances, 4. In their written observations, Novasam therefore, it cannot be thought — and this is and the Commission ask the Court to borne out by the reasons for the consider the dispute not only from the point decision — that the national court may have of view of Article 86 but also in the light of formulated its question incorrectly. the prohibition laid down by Article 85 of the Treaty. In that regard the Commission It is clear from the Court's case-law that a admits that in fact it can 'detect. . . only a question exhibiting those characteristics may degree of parallel conduct between, in not be corrected or adapted.
According to particular, installers belonging to the same paragraphs 5 to 7 of the Court's judgment groups' (at p. 22). However, on the basis of of 9 July 1969 in Case 10/69 (Portelange v the information available to it (but not to Smith Corona Marchant [1969] ECR 309), the national court), the Commission assumes Article 177 'does not permit [the that the national court could treat the
Court] . . . to pass judgment on the reasons situation described in paragraph 2 as a for requests for interpretation. The question concerted practice 'having as its purpose to whether the provisions or concepts of fix . . . trading conditions [and] thereby Community law whose interpretation is falling within the category referred to in requested are in fact applicable to the case Article 85 (1) (a). Accordingly, any in question lies outside the jurisdiction of contractual clause in conformity with that the Court of Justice and falls within the practice would, pursuant to Article 85 (2), jurisdiction of the national court'.
It is be automatically void' (at p. 24). therefore for the national court — as the Court adds in paragraph 5 of its judgment of 14 February 1980 in Case 53/79 (ONPTS v Damiani [1980] ECR Those clauses — the Commission goes on to 273) — which is 'alone in having a direct state — could also be regarded as vertical knowledge of the facts of the case and of agreements between undertakings and, in the arguments put forward by the parties, particular, as exclusive supply contracts of a and which will have to give judgment in the' minimum duration of 15 years. On the case, to appreciate .
. . the relevance of the other hand, as they are not concerned with question . . . raised by the dispute before it the supply of products intended for resale, and the necessity for a preliminary they do not come within the scope of the ruling . . . '. rules — Regulation No 67 / 67 / EEC of 22 March 1967 (Official Journal, English Special Edition 1967, p. 10) — on exemption for certain categories of If, therefore, the Commission is genuinely agreements, and since they have not been convinced that the clauses in question may notified pursuant to Article 85 (3) the only have an adverse effect on intra-Community authority which can declare them null and trade and deliberately and objectively distort void is the national court. competition on the common market, it has only to raise the matter with the under-
OPINION OF MR MANCINI — CASE 247/86
however, applies only in so far as those takings concerned, solicit their views on the practices may have an appreciable effect on allegations and, if necessary, adopt a trade between Member States. In order to decision requiring them to bring the apply that provision correctly, therefore, it infringement to an end. As everyone is is necessary: (a) to define the relevant aware, moreover, the decision, whether market and its territorial extent; (b) to adverse or otherwise, is subject to direct ascertain whether one or more undertakings review by the Court. occupy a dominant position on that market and engage in abusive practices; (c) to determine whether, as a result of such conduct, intra-Community trade is affected to an appreciable extent. As things are, however, to ascertain whether those clauses are contrary to, or compatible with, the prohibition laid down by Article 85 is a matter exclusively for the national court; the file on the case does not permit the Court to lay down any criteria for the guidance of the national court in carrying With regard to the first point, I have stated out that task. Not even the 'degree of in paragraph 3 that the relevant market is parallel conduct' referred to by the that in the rental and maintenance of Commission can be used for those purposes. telephone exchanges for business use An assessment of a situation of that kind belonging to the simplest class of complex can be made only on the basis of the nature equipment. As regards the geographical of the relationship between the undertakings extent of that market, the Commission belonging to the group and, as we have rightly points out that in that sector seen, the indications provided by the orders installers and manufacturers can operate for reference and the submissions of the only with the authorization of the postal parties are not consistent in that regard. In and telecommunications authorities and are particular, it is by no means apparent that in direct competition with them. Their those undertakings pursue the same strategy conduct should therefore be assessed by on the market in the rental and maintenance reference to the territory covered by the of telephone exchanges (see the judgment of monopoly. In practical terms, however, it 4 May 1988 in Case 30/87 Bodson [1988] follows from the very nature of the service ECR / 2479 , at paragraph 20). In any event, under consideration that installers compete the national court may, if it sees fit, primarily at regional or local level, which consider the problem in detail and submit a means that proof of a dominant position reference to the Court for a preliminary must be furnished in that context. ruling.
5. Let me now consider the question The national court points out that in the submitted within the limits of the wording départements in Alsace and Lorraine used in the order for reference. Article 86, applications for authorization submitted by as we know, prohibits abusive practices Alsatel account for 'over one-half of the connected with the exploitation by one or total', a fact from which, taking into more undertakings of a dominant position account competition from the postal within the common market or in a and telecommunications authorities, the substantial part of it. That prohibition, Commission infers Alsatel holds just over
ALSATEL v NOVASAM
one-third of the market in the rental of rela with regard to the market in telephone tively complex installations. In other words, equipment rentals. In considering that issue the postal and telecommunications auth the national court will have to bear in mind orities and Alsatel are more or less in the that a dominant position for the purposes of same position; if that is so, it is clear that Article 86 is 'a position of economic Alsatel cannot legitimately be regarded as strength enjoyed by an undertaking which dominant in economic terms on the regional enables it to hinder the maintenance of market or, a fortiori, on the national market. effective competition on the relevant market by allowing it to behave to an appreciable extent independently of its competitors and
6. I could stop at this point. However, the customers and ultimately of consumers'. Commission states that this case must be Furthermore, that investigation cannot be examined from the broader perspective of a 'limited to the objective characteristics . . . of dominant position occupied by undertakings the relevant products [and services] . . . : the collectively and in that regard points out competitive conditions and the structure of that, viewed as a whole, the market in supply and demand on the market must also telephone equipment rentals is divided be taken into consideration' (judgment of 9 between two large categories of traders: the November 1983 in Case 322/81 Michelin v postal and telecommunications authorities, Commission [1983] ECR 3461, at para who hold one-third of the market, and graphs 30 and 37). Finally, the national authorized installers, who hold the court must not disregard the fact that remaining two-thirds. Moreover, the Court Article 86 is applicable even if the absence has consistently held that a dominant or restriction of competition is facilitated by position can also exist where several under national laws or regulations (judgment of 4 takings which belong to the same group or May 1988 in Case 30/87 Bodson, cited conclude an agreement have between them above, at paragraph 26). the power to hinder effective competition. As we have seen, the Commission con siders—without being certain — that a degree of 'parallel conduct' exists between the companies belonging to the Intertel
group. That brings me to the other two conditions laid down by Article 86. With regard to the abusive nature of the contested practices (the clauses imposed on the customer, the I should point out once again that the duration of the contracts and the rental), documents before the Court do not contain the national court will have to ascertain any information which is capable of whether and to what extent those practices substantiating that supposition. On the are necessary for Alsatel's activities and for contrary, the fact that the postal and tele the amortization of the capital invested by communications authorities have for some
it. For those purposes, it may be appropriate time been competing increasingly vigorously to take into consideration the value of the against installers who rent out relatively equipment brought into service, the price complex installations, offering subscribers paid by the user for installation and the similar services but on more favourable relationship between the amount of the rent terms, would seem to militate against the and the cost of maintenance. Those figures Commission's hypothesis. will have to be compared with the corre sponding figures in the contracts offered by the postal and telecommunications auth In any event, it is for the national court to orities, bearing in mind that those auth investigate the reality of that hypothesis orities are financed under the State budget.
OPINION OF MR MANCINI — CASE 247/86
Finally, I would remind the Court that the French market is 'sufficiently large to permit Commission: has acknowledged that it does the conclusion to be drawn that it has an not have afits disposal the essential infor "appreciable" effect on trade between mation needed to establish /whether the Member States'. Hence that information as share of telephone equipment imported well will have to be gathered by the national from other Member States and sold on the court, and the task is far from enviable.
7 On the basis of the foregoing-considerations I suggest that the Court answer the question submitted by the tribunal de grande instance, Strasbourg by judgments of 17 September and'10'December 1986 in the proceedings pending before it between Alsatel and Novasam as follows:
'The prohibition laid down by Article .86 of the EEC Treaty applies to abusive practices pursued by one or more undertakings which enjoy a position of economic strength within the common' market or in a substantial part of it which enables them to hinder the maintenance of effective competition by allowing them to behave to an appreciable extent independently of their competitors and customers and ultimately of consumers. Where those conditions are not met, and where there is no appreciable .effect on intra-Community trade the practices pursued by one or more undertakings,- even if they may be considered abusive, fall outside the scope of Article 86.'