C-7/97

OPINION OF MR JACOBS — CASE C-7/97

OPINION OF ADVOCATE GENERAL JACOBS delivered on 28 May 1998 *

1. In this case the Oberlandesgericht Wien verlag G m b H & Co. KG, is the publisher of (Higher Regional Court, Vienna), acting in its the daily newspapers Neue Kronen Zeitung capacity as the Kartellgericht (Court of First and Kurier and carries on the marketing Instance in competition matters), has asked and advertising business of those newspapers the Court whether the refusal by a newspaper through its wholly owned subsidiaries, group holding a substantial share of the market Mediaprint Zeitungsvertriebsgesellschaft in daily newspapers to allow the publisher of m b H & Co. KG and Mediaprint Anzeigeng- a competing newspaper access to its home- esellschaft m b H & Co. KG, respectively the delivery network, or to do so only if it pur- second and third defendants in the main pro- chases from the group certain additional ser- ceedings. In 1994 the combined market share vices, constitutes an abuse of a dominant of the two newspapers was 46.8% of total position contrary to Article 86 of the Treaty. circulation and 42% of total advertising rev- enues. In addition, they reached 53.3% of the population from the age of 14 in private households and 71 % of all newspaper readers.

The facts and national court's questions

subscribers it would be unprofitable for of Community law, be tolerated under national Bronner to organise its own home-delivery law. Noting that the applicability of Article service. Bronner argues further that Medi- 86 of the Treaty presupposes that the abuse aprint has discriminated against it in so far as can affect trade between Member States, the it allows another daily newspaper Wirtschafts- national court refers to the concern expressed blatt, not published by Mediaprint, to have by Bronner that refusal of access to Medi­ access to its home-delivery service. aprinťs home-delivery service would force it out of the market in daily newspapers and threaten its existence. Since Bronner, as the publisher of a national daily newspaper also available abroad, is an offeror in international trade and commerce, the national court con­ 5. Mediaprint contends that it has built up cludes that the effect on intra-Community the home-delivery service at great financial trade is established. and administrative cost. Even if it is in a dominant position, it is not obliged to afford assistance to its competitors. The situation of the Wirtschaftsblatt, admitted to its network, is not comparable to that of Der Standard because the publisher of the former also entrusted Mediaprint with printing and mar­ keting; thus, access to the home-delivery net­ work was only part of an overall package. 7. The national court therefore seeks a ruling Furthermore, the Wirtschaftsblatt is not a from the Court on the following questions: direct competitor of Mediaprinťs daily news­ papers since it does not contain essential fea­ tures of a daily newspaper such as sport, cul­ ture and television. Finally, it would overtax the capacity of the home-delivery network if Mediaprint were required to make it available to all Austrian publishers of daily newspa­ pers. '(1) Is Article 86 of the E C Treaty to be interpreted in such a way that there is an abuse of a dominant position, in the sense of an abusive barring of access to the market, where an undertaking which 6. The national court regards itself as com­ carries on the publication, production petent solely to apply national competition and marketing of daily newspapers, and rules, and not to apply directly the competi­ with its products occupies a predomi­ tion rules of the Treaty. It reasons however nant position on the Austrian market for that, if the conduct of a market participant daily newspapers (46.8% of total circu­ falls within the terms of Article 86 of the lation, 4 2 % of advertising revenue and Treaty, then it must logically constitute an 71 % range of influence, measured by the abuse within the meaning of Paragraph 35 of number of all daily newspapers), and the Kartellgesetz, which has an analogous operates the only nation-wide home- content. Conduct forbidden under Commu­ delivery distribution service for sub­ nity law cannot, on account of the supremacy scribers, refuses to make a binding offer

10. However, in my view it is clear that the Kartellgericht is a court and is acting as such in the main proceedings. It must therefore be competent to apply Article 86. (2) Does it amount to an abuse within the meaning of Article 86 of the EC Treaty, where, under the circumstances described at (1) above, the operator of the home- delivery scheme for daily newspapers makes the entry into business relations with the publisher of a competing product dependent upon the latter entrusting him not only with home deliveries but also 11. That it is a court and is acting as such is with other services (e.g. marketing confirmed by the Court's case-law on whether through sales points, printing) within the a body is a 'court or tribunal of a Member context of an overall package?' State' within the meaning of Article 177. There the Court has regard to a number of factors, such as whether it is established by law, whether it is permanent, whether its jurisdic- tion is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. 1 Moreover, the body must be acting in its judicial capacity. That will be so 'if there is a case pending before it and if it is called upon to give judg- 8. Written observations have been submitted by Bronner, Mediaprint and the Commission, all of 'which were also represented at the 1 — See, for example, Cue C-54/96 Dorsch ConsultIngenieurge- hearing. sellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-4961.

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ment in proceedings intended to lead to a tion upon the Kartellgericht whether to enter- decision of a judicial nature ...'. 2 tain the claim. In determining the action the Kartellgericht applies the rules and concepts, in particular the notions of dominance and abuse, laid down in Paragraphs 34 and 35 of the Kartellgesetz.

2 — Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9 of the judgment. 3 — Paragraph 88. 8 — Case 127/73 BRT v SABAM [1974] ECR 51, paragraph 15 of 4 — Paragraph 89(1). the judgment. 5 — Paragraph 94. 9 — Case 35/76 Simmenthal v Italian Minister for Finance [1976] 6 — Paragraph 92. ECR 1871. 7 — See, in particular, paragraph 43. 10 — At paragraphs 19 and 20 of the judgment.

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16. Nevertheless, it might be argued that viewed as an extension of the purely national SABAM does not settle the issue since the competition body. referring court in SABAM was in fact a civil court hearing an ordinary civil claim rather than a specialised competition court. In the Notice on cooperation between national com- petition authorities and the Commission in handling cases falling within the scope of Articles 85 or 86 of the E C Treaty, 1 1the Commission accepts that the authorities of 18. It is however unnecessary to pursue that some Member States can apply exclusively point here. N o such issue arises where, as in national rules because they lack the proce- the present case, a Member State organises its dural means for applying Articles 85 and 86. system in such a way that the specialised Since Articles 85 and 86 are directed at under- competition body is itself a court and the rel- takings rather than Member States and since evant proceedings are inter partes and judicial the Commission is designated as the authority in nature. In such circumstances the principle primarily responsible for the enforcement of of the effectiveness of Community law and those provisions, it may well be that Member the direct effect of Article 86 require that the States are not obliged to entrust their national court should be able to apply Article 86 competition authorities (as distinct from their directly to the case before it, thereby removing courts) with the task of enforcing those pro- the need to bring separate proceedings based visions. It may therefore be that the sole obli- on Community law before another court. gation of such authorities is to apply national competition rules in a manner which does not conflict with Articles 85 and 86.

the Commission points out, the Austrian pro- cases falling within the scope of Articles 85 visions on competition are not based directly and 86 remain unclear, 14 and it has even been on Community competition law and do not suggested that, in view of the difficulty in refer to it. Austrian law gives an entirely dif- defining such limits coherently, the very prin- ferent definition of dominance from that of ciple of concurrent application should be Community law. An abuse is prohibited only reconsidered. 15 In practice it appears that the after an order by the Kartellgericht that it uncertainty in this area is partly overcome by should be terminated. Moreover there are close cooperation between the Commission special provisions on dominance in relation and national competition authorities, the to the media. The present case is therefore importance of which has been emphasised by different from those where there is a direct the Commission. 16 Against that background link between national law and Community it is understandable that a national court, even law, as for example where national law con- if it were competent solely to apply national sists of a direct transposition of Community law, should wish, especially where there is an law. 12 effect on trade between Member States, to obtain guidance on the position under Com- munity law with a view to achieving, where possible, an analogous result under its national rules. Although there may be no obligation on the national court under Community or national law to apply the Court's ruling, the 21. It might however be argued that the field ruling may well be decisive in such a case. of competition law has special features which Such a case is therefore entirely different from should lead the Court to give a ruling, at least one in which the preliminary ruling proce- in cases where there is an effect on intra- dure is used merely as an exercise in com- Community trade. As Community law stands parative law. 17 at present, Community and national competi- tion rules are applied concurrently in cases falling within the scope of Articles 85 and 86. 13 Thus, although in the main proceedings the referring court proposes to apply national law, the situation before it — and the context in which it has asked the Court to rule — is one to which Article 86 applies.

26. Moreover, as the Commission acknowl- edges, the national court's finding might be supported by another line of reasoning. If refusal of access to Mediaprint's network made it difficult to gain access to the Austrian market, that might have the effect of insu- 24. Mediaprint and the Commission also con- lating the Austrian market from competition tend that the reference is inadmissible because, from publishers from other Member States contrary to the national court's finding, the wishing to publish or sell newspapers in Aus- requirement of an effect on trade between tria and thus interfering with the develop- Member States is not met. The conclusion ment of trade patterns in the Community. that Der Standard would be forced out of the The Commission's argument that such an market is implausible and, if it were correct, effect is unlikely in view of the other means any effect on trade would not be appreciable of distribution available goes to the substance in view of the small numbers of copies sold of the case. If Mediaprint's refusal to allow abroad. access to its distribution system were found to constitute an abuse because of its effects on the Austrian market in daily newspapers, there would on the above analysis also be a poten- tial effect on intra-Community trade.

25. However, the national court has made a preliminary finding that the requirement of an effect on trade is met and has put its ques- tions on that basis. That is sufficient to make the reference admissible. While Mediaprint's claim in its written observations that copies of Der Standard sold outside Austria repre- sent a minute proportion of total sales would, if substantiated, cast doubt on the national 27. I therefore conclude that the reference is court's reasoning, that is not sufficient for the admissible.

28. In order to determine whether an under- taking has abused a dominant position on the 30. It appears that in Austria there are, in market contrary to Article 86, it is necessary addition to Mediaprint's nation-wide net- first to define the relevant market, secondly work, a number of local or regional networks; to determine whether the undertaking con- in addition there are other means of distribu- cerned is dominant on the market so defined tion such as postal delivery, shops, kiosks, and, if so, finally to determine whether its newspaper stands or vending machines and so conduct amounts to an abuse of that domi- forth. Against that background, it is neces- nant position. sary to decide whether the relevant market is (a) distribution of daily newspapers in gen- eral, (b) regional and nation-wide home- delivery of daily newspapers, or (c) nation- wide home-delivery of daily newspapers. In that regard the essential question is the extent Relevant market to which nation-wide home distribution is interchangeable with regional or local distri- bution services or with other means of dis- tribution. Nation-wide home distribution will constitute a separate market if it has a limited degree of interchangeability with other forms of distribution. Of particular relevance is the extent to which it has particular characteris- 29. The national court's questions appear to tics influencing the choice of customers and assume that the relevant market is the market the degree of cross-elasticity of demand in daily newspapers, Mediaprint's highly between the service and other types of distri- developed distribution network being a factor bution. 18 in assessing whether it is dominant on that market. It seems to me however that, as Bronner and the Commission suggest, in this case the relevant market is more appropri- ately identified, not as the newspaper market as such, but as the distribution market or part thereof. An undertaking might be dominant on a product market but not control distribu- 31. It is however unnecessary to consider that tion or vice versa. The alleged abuse is refusal issue further here. As I shall explain below, of access, or the imposition of unreasonable terms for access, to Mediaprint's distribution system. Thus the claim relates to an alleged abuse by Mediaprint of its market power in 18 — See Cue 27/76 United Brands v Commission [1978] ECR 207, paragraphs 22 to 35 of the judgment. See also the Com- the area of newspaper distribution with a view mission Notice on relevant markets, OJ 1997 C 372, p. 5.

32. According to the traditional analysis the next step would be to determine whether Mediaprint has a dominant position on the relevant market. In United Brands the Court defined a dominant position as 'a position of economic strength enjoyed by an undertaking which enables it to prevent effective competi- tion being maintained on the relevant market by giving it the power to behave to an appre- ciable extent independently of its competi- tors, customers and ultimately of its consum- 34. According to that doctrine a company ers'. 19 The result may therefore differ which has a dominant position in the provi- according to the national court's determina- sion of facilities which are essential for the tion of the relevant market. However, it is supply of goods or services on another market unnecessary here to consider the various pos- abuses its dominant position where, without sibilities since, as will become apparent, it is objective justification, it refuses access to those appropriate in the present context to consider facilities. Thus in certain cases a dominant the issue of dominance together with that of undertaking must not merely refrain from abuse. anti-competitive action but must actively pro- mote competition by allowing potential com- petitors access to the facilities which it has 19 — Paragraph 65 of the judgment. developed.

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Relevant case-law and practice The Court held that:

22 — Paragraph 182. 20 — Joined C u e s 6/73 and 7/73 Commercial Solvents v Com- 23 — Case 311/84 CBEM v C LT and IPB [1985] ECR 3261. mission [1974] ECR 223. 24 — Case C-18/88 [1991] ECR I-5941. 21 — Cited in note 18. 25 — GB-lnno-BM, paragraph 18 of the judgment

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OPINION OF MR JACOBS — CASE C-7/97

38. In GB-Inno the Court, referring to It follows that an obligation imposed upon Télémarketing, held that an undertaking the proprietor of a protected design to grant holding a monopoly in the market for the to third parties, even in return for a reason- establishment and operation of a telecommu- able royalty, a licence for the supply of prod- nications network infringed Article 86 where ucts incorporating the design would lead to it, without any objective necessity, reserved the proprietor thereof being deprived of the to itself the neighbouring but separate market substance of his exclusive right, and that a for the importation, marketing, connection, refusal to grant such a licence cannot in itself commissioning and maintenance of equip- constitute an abuse of a dominant position. ment for connection to the said network, thereby eliminating all competition from other undertakings.

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BRONNER v MEDIAPRINT

the publication by a third party of weekly TV that case the Commission rejected the appli- guides which would have competed with the cant's complaint against the refusal by under- television guides published by each broad- takings holding the rights in televised pictures caster covering exclusively its own pro- and sound commentaries on French horse grammes. The Court noted: races and the undertaking holding the exclu- sive rights to market such pictures in Ger- many and Austria to grant it the right to retransmit the pictures and sound commen- taries in its betting shops in Belgium. Upholding the Commission's decision the 'Thus the appellants — who were, by force of Court of First Instance found first that the circumstances, the only sources of the basic Commission had correctly identified the information on programme scheduling which product market as retransmission of sound is the indispensable raw material for com- and pictures of horse races in general and the piling a weekly television guide — gave viewers geographical market as the Belgian market. wishing to obtain information on the choice Turning next to the question of abuse, the of programmes for the week ahead no choice Court of First Instance noted that the under- but to buy the weekly guides for each station takings had not granted any licence for the and draw from each of them the information territory of Belgium to date; their refusal to they needed to make comparisons. grant a licence to the applicant did not there- fore entail discrimination between operators on the Belgian market. In addition, since the geographical market was divided into distinct markets it did not entail any partitioning of the markets. The appellants' refusal to provide basic infor- mation by relying on national copyright pro- visions thus prevented the appearance of a new product, a comprehensive weekly guide to television programmes, which the appel- lants did not offer and for which there was a potential consumer demand. Such refusal con- stitutes an abuse under heading (b) of the second paragraph of Article 86 of the Trea- ty.' 29

'The refusal to supply the applicant could not fall within the prohibition laid down by 44. The European Commission has consid- Article 86 unless it concerned a product or ered instances of refusal to supply in a long service which was either essential for the Une of cases under Articles 85 and 86. Exam- exercise of the activity in question, in that ples include the tying by IBM of sales of there was no real or potential substitute, or computers to sales of main memory and basic was a new product whose introduction might software and refusal to supply certain soft- be prevented, despite specific, constant and regular potential demand on the part of con- ware for use with non-IBM computers, 32 sumers ..." 31 refusal to supply instant film without any guarantee as to where the film would be resold, 33 refusal to supply industrial sugar to a producer of refined sugar by reducing the price difference between retail and industrial sugar to a point at which the margin for an independent producer of retail sugar was inad- equate, 34 refusal by an airline to allow a competing airline access to a computer reser- vation system in order to put pressure on the 43. It is clear from the above rulings that a dominant undertaking commits an abuse other airline to raise fares or withdraw from where, without justification, it cuts off sup- a route, 35 refusal to interline, i. e. to issue plies of goods or services to an existing cus- tickets on behalf of another airline, when tomer or eliminates competition on a related market by tying separate goods and services. However, it also seems that an abuse may consist in mere refusal to license where that 32 — Case 60/81 IBM v Commission [1981] ECR 2639. prevents a new product from coming on a 33 — Polaroid/SSI, Thirteenth Report on Competition Policy (1984), p. 95. neighbouring market in competition with the 34 — Commission Decision 88/518/EEC of 18 July 1988 relating to a proceeding under Article 86 of the EEC Treaty (Napier Brown v British Sugar), OJ 1988 L 284, p. 41. 35 — Commission Decision 88/589/EEC of 4 November 1988 relating to a proceeding under Article 86 of the EEC Treaty 31 — Paragraph 131. (London European v Sabena), OJ 1988 L 317, p. 47.

another airline began to compete on a route, 36 may be helpful to give a brief account of the clauses in distribution and sales agreements relevant US law. preventing supermarkets from stocking other suppliers' brands of spices, 37 and limitation of access to underground pipelines used for refuelling aircrafts at an airport. 38 In addition the Commission has required access to cer- tain facilities, such as computerised airline reservation systems 39 and landing and take-off slots at airports, 40 to be given on a non- 46. Under US law the freedom to deal or not discriminatory basis as a condition for exemp- to deal is regarded as a fundamental aspect of tion. freedom of trade. US antitrust law, embodied in section 2 of the Sherman Act 1890, essen- tially aims to protect competition by prohib- iting the acquisition or maintenance of monopoly power, rather than by regulating the actions of companies in dominant posi-

36 — Commission Decision 92/213/EEC of 26 February 1992 relating to a procedure pursuant to Articles 85 and 86 of the EEC Treaty (British Midland v Aer Lingus), OJ 1992 L 96, p. 34 and Lufthansa v Air Europe, Twentieth Report on Competition Policy (1991), p. 83. 37 — Commission Decision 78/172/EEC of 21 December 1977 relating to a proceeding under Article 85 of the EEC Treaty (Spices), OJ 1978 L 53, p. 20. 38 — Disma, Twenty-third Report on Competition Policy (1994),

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list. A facility will be regarded as essential interim measures decisions concerning the when access to it is indispensable in order to port of Holyhead, B & ¡Line pic v Sealink compete on the market with the company Harbours Ltd and Sealink Stena Ltd 49 and that controls it. The following have for Sea Containers v Stena Sealink. 50 In the example been held to be essential facilities: second of those cases the Commission con- railroad bridges serving the town of St Lou- cluded that, by refusing access to the port of is; 42 a local telecommunications network; 43 a Holyhead on reasonable and non- local electricity network. 44 Secondly, a com- discriminatory terms to a potential competitor petitor is unable practically or reasonably to in the market for ferry services Sealink, as duplicate the essential facility. It is not suf- port operator, had abused its dominant posi- ficient that duplication would be difficult or tion on the market in port services. In the expensive, but absolute impossibility is not decision the Commission, repeating and required. 45 Thirdly, the use of the facility is expanding what it had said in the first deci- denied to a competitor. That condition would appear to include the refusal to contract on sion, stated: reasonable terms. 46 Fourthly, it is feasible for the facility to be provided. Fifthly, there is no legitimate business reason for refusing access to the facility. A company in a dominant position which controls an essential facility can justify the refusal to enter a contract for legitimate technical or commercial reasons. 47 It may also be possible to justify a refusal to contract on grounds of efficiency. 48

B R O N N E R v MEDIAPRINT

essential facility which uses its power in one cases with which it has dealt such additional market in order to protect or strengthen its factors are to a greater or lesser extent present). position in another related market, in par- An essential facility can be a product such as ticular, by refusing to grant access to a com- a raw material or a service, including provi- petitor, or by granting access on less favour- sion of access to a place such as a harbour or able terms than those of its own services, and airport or to a distribution system such as a thus imposing a competitive disadvantage on telecommunications network. In many cases its competitors, infringes Article 86.' 51 the relationship is vertical in the sense that the dominant undertaking reserves the product or service to, or discriminates in favour of, its own downstream operation at the expense of competitors on the downstream market. It may however also be horizontal in the sense of tying sales of related but distinct products or services. 49. The Commission based the above state- ment of the law on the Court's rulings in Commercial Solvents, 52 Télémarketing, 53 GB-Inno, 54 ERT 55and the judgment of the Court of First Instance in Magill. 56 It then added: 'This principle applies when the com- petitor seeking access to the essential facili- ties is a new entrant into the relevant mar- ket.' 57

52. Thus it appears that in the practice of the notion of essential facilities has begun to Commission in cases concerning refusal to develop from more general principles to supply the notion of essential facilities plays require enterprises controlling such facilities an important role. not to refuse access to them without justifica- tion. In Denmark, prior to the entry into force of a new law 70 this notion was applied in respect of the port at Elseneur and the elec- tricity transmission network in Seeland. 71 In France the notion was applied in respect of a heliport. 72 In a Spanish case concerning access to supplies of tobacco 73 substantial reference was made to the essential facilities doctrine as developed in the Commission's Decision in

Such is the case in Finland in respect of the tele- phone network, 6 5electricity transmission net- work 65 and postal services 66 and in Austria in respect of the rail network, 67 energy pro- duction and distribution, 68 and tramway and 54. Against that background I turn to the bus services. 69 In other Member States the issue raised by the national court's first ques- tion. It may be noted that, although one of Bronner's complaints is that in refusing access to its home-delivery network Mediaprint has 59 — Article 6 of Law N o 16/1989 on competition of 17 July discriminated between it and another pub- 1989, Defensa de la Competencia (BOE N o 170, 18 July 1989); Case 350/94 3C Communications España v Telefónica lisher, the referring court has not put a ques- de España (Teléfonos en Aeropuertos) Decision of the Tri- bunal de la Defensa de la Competencia of 1 February 1995. tion on that issue. The purpose of the national 60 — Paragraph 7 of Laki kilpailunrajoituksista 27.5.1992/480. court's first question is to discover whether 61 — Article 8 of Order N o 86-1243 of 1 December 1986, Code an undertaking in Mediaprint's position de Commerce, Dalloz (ed) (1990-91), p. 523. 62 — Article 2(c) of Law N o 703/1977. 63 — Articles 3(4) and 2(f) and (g) of Decree-Law N o 371/93. 64 — Paragraph 15 of Telemarkkinalaki 30.4.1997/396. 65 — Paragraphs 9.2 and 10.1 of Sahkömarkkinalaki 17.3.1995/386. 70 — Law N o 384 of 10 June 1997. 66 — Paragraph 4.2 of Postitoimintalaki 29.10.1993/907. 71 — Konkurrencerådet Dokumentation 1996-1, p. 60.

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commits an abuse, in the absence of any other own use facilities which it has developed ror factors such as cut-off of supplies, tying of the purpose of its business. For example, if sales or discrimination between independent access to a production, purchasing or distri- customers, if it refuses to allow another news- bution facility were allowed too easily there paper publisher to have access to a distribu- would be no incentive for a competitor to tion system which it has developed for the develop competing facilities. Thus while com- purposes of its own newspaper business. petition was increased in the short term it would be reduced in the long term. More- over, the incentive for a dominant under- taking to invest in efficient facilities would be reduced if its competitors were, upon request, able to share the benefits. Thus the mere fact that by retaining a facility for its own use a 55. It is clear from the above discussion that dominant undertaking retains an advantage that question raises a general issue which can over a competitor cannot justify requiring arise in a variety of different contexts. While access to it. it would not be appropriate, on the facts of the present case, to attempt to provide com- prehensive guidance on that issue, a number of general points should be made before I turn more specifically to the present case.

'I do not think that the question whether the market for the raw materials for the produc- tion of a particular compound is a relevant market can, logically, be divorced from the question whether the market for that com- pound is a relevant one. The consumer, after all, is interested only in the end product, and 62. In assessing such conflicting interests par- it is detriment to the consumer, whether direct ticular care is required where the goods or of indirect, with which Article 86 is con- services or facilities to which access is cerned.' 75 demanded represent the fruit of substantial investment. That may be true in particular in relation to refusal to license intellectual prop- erty rights. Where such exclusive rights are granted for a limited period, that in itself involves a balancing of the interest in free competition with that of providing an incen- tive for research and development and for 60. The compound in question was the anti- creativity. It is therefore with good reason tubercular drug ethambutol. O n the facts the that the Court has held that the refusal to Advocate General considered that the Com- license does not of itself, in the absence of mission had correctly concluded that the other factors, constitute an abuse. 76 market for ethambutol could properly be con- sidered a market in itself because it was used in combination with other anti-tubercular drugs and was a complement of them rather than their competitor.

63. The ruling in Magill 77 can in my view by explained by the special circumstances of that 61. It is on the other hand clear that refusal case which swung the balance in favour of an of access may in some cases entail elimination

64. While generally the exercise of intellec- tual property rights will restrict competition for a limited period only, a dominant under- taking's monopoly over a product, service or facility may in certain cases lead to perma- nent exclusion of competition on a related 66. I do not rule out the possibility that the market. In such cases competition can be cost of duplicating a facility might alone con- achieved only by requiring a dominant under- stitute an insuperable barrier to entry. That taking to supply the product or service or might be so particularly in cases in which the allow access to the facility. If it is so required creation of the facility took place under non- the undertaking must however in my view be competitive conditions, for example, partly fully compensated by allowing it to allocate through public funding. However, the test in an appropriate proportion of its investment my view must be an objective one: in other costs to the supply and to make an appro- words, in order for refusal of access to amount priate return on its investment having regard to an abuse, it must be extremely difficult not

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BRONNER v MEDIAPRINT

term and indeed would scarcely be compat- 73. It is true that in principle Question 2 ible with a free market economy. might arise even in the event of a negative reply to Question 1. Even where a dominant undertaking's refusal to allow access to its distribution network is not in itself abusive, it may nevertheless commit an abuse if, without justification, it ties such access to the supply of other services and hence seeks to extend its market power in a related market. However, in the circumstances of the case 70. It seems to me therefore that the present such a question would be purely hypothetical. case falls well short of the type of situation in Mediaprint has refused to allow Bronner which it might be appropriate to impose an access to its delivery system on any terms. It obligation on a dominant undertaking to allow has not, in its relations with Bronner, sought access to a facility which it has developed for to tie access to the supply of other services. its own use.

It is not an abuse of a dominant position within the meaning of Article 86 of the E C Treaty for an undertaking which has a very substantial share of the market for daily newspapers in a Member State, and which operates the only nation-wide home-delivery distribution service for subscribers, to refuse to allow the publisher of a competing newspaper access to that home-delivery distribution service.

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