C-137/00

1. These proceedings relate to a reference for a preliminary ruling by the High Court of Justice of a series of questions on the relationship between national law and Community law as it affects the common agricultural policy. The Court of Justice is ' 1 . Before 1 August of each year a target essentially being asked to clarify whether price for milk shall be fixed for the national authorities have jurisdiction to Community in respect of the milk year apply their domestic competition law in beginning in the following calendar year.... the area of the common organisation of the market for milk and milk products to a co-operative of milk producers that holds a dominant position 2on the market, and, if so, to identify the Community provisions and limitations to which the exercise of that jurisdiction is subject. 2. The target price shall be that price which it is aimed to obtain for the aggregate of 1 — Original language: German. producers' milk sales, on the Community 2 — Whether the undertaking enjoys market power is a question of national law in this case. It should be assumed for the purposes of this Opinion, following the questions referred for a preliminary ruling, that Milk Marque occupies a 3 — On the common organisation of the market in milk and dominant position on the market. milk products (OJ, English Special Edition 1968 (I), p. 176).

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market and on external markets, during the 4. Article 1 of EEC Council Regulation milk year. No 26 of 4 April 1962, 5 which was adopted on the basis of Articles 42 EC and 43 EC (hereinafter 'Regulation No 26') provides as follows:

3. The target price for the milk year 6. Article 2(1) and (2) of Regulation No 26 1997/1998 was fixed by Council Regu- provides as follows: lation (EC) No 1190/97 of 25 June 1997 4 (hereinafter 'Regulation No 1190/97'). The first recital in the preamble to that regu- lation states: 'when fixing the common agricultural prices each year, account should be taken of the objectives of the ' 1 . Article 85(1) of the Treaty shall not common agricultural policy... The objec- apply to such of the agreements, decisions tives of the common agricultural policy are and practices referred to in the preceding in particular to secure a fair standard of Article as form an integral part of a living for the agricultural community and national market organisation or are necess- to ensure that supplies are available and ary for attainment of the objectives set out that they reach the consumers at reasonable in Article 39 of the Treaty. In particular, it prices'. shall not apply to agreements, decisions

4 — fixing the target price for milk and the intervention prices 5 — applying certain rules of competition to production of and for butter and skimmed-milk powder for the 199//1998 trade in agricultural products (OJ, English Special Edition milk marketing year (OJ 1997 L 170, p. 6). 1959-1962, p. 129).

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and practices of farmers, farmers' associ- supply of milk. It is the largest co-operative ations, or associations of such associations of its kind in Great Britain. In 1997/1998 belonging to a single Member State which Milk Marque accounted for 49.6% of concern the production or sale of agricul- supplies of milk in Great Britain. tural products or the use of joint facilities for the storage, treatment or processing of agricultural products, and under which there is no obligation to charge identical prices, unless the Commission finds that competition is thereby excluded or that the objectives of Article 39 of the Treaty are jeopardised.

MILK MARQUE AND NATIONAL FARMERS' UNION

10. It is also important for an understand- 13. Following discussions with the compet- ing of elements of the questions referred ent authorities to that end, Milk Marque that the Report's finding to the effect that none the less announced in a press release the manner in which that market power of 17 September 1999 that it proposed to was exercised had caused prices to increase divide itself into three smaller co-operatives was partially based on a comparison with as from 1 April 2000. the target price set for the purposes of the common organisation of the market in milk and milk products. The producer price of milk was consistently below the target price in the United Kingdom, but seems to have moved nearer to the target price during the period under investigation in the Report.

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16. They submitted in particular that, in selves in regard to the sale and process- asserting jurisdiction over the activities of ing of their milk: the members of Milk Marque, and in recommending and taking steps pursuant to the Fair Trading Act to prevent them from obtaining a higher price for their milk, the MMC and the Secretary of State had acted contrary to Community law. (a) in all circumstances; or Milk Marque and the NFU also contended that, by taking such steps in future pur- suant to the Fair Trading Act or the Competition Act, the Secretary of State and MMC would be acting contrary to Community law. (b) where the intended or actual effect is to deprive such producers of the ability to increase the price obtained for the milk; or

(c) where the intended or actual effect 17. The High Court considers that in order is to reduce the price that pro- to decide the case, clarification is needed on ducers obtain for their milk in whether the national authorities retain any circumstances where that price is powers in the area of the common organi- already below the target price fixed sation of the market for milk and milk pursuant to Article 3 of Regulation products, and if so the extent of those No 804/68; or powers. It has referred the following ques- tions to the Court of Justice for a pre- liminary ruling:

(d) in a way which is not consistent with any one or more of the following:

' 1 . Are Articles 32 to 38 EC..., Council Regulation 26/62/EEC and Council Regulation (EC) No 804/68, as (i) the objectives set out in amended, to be interpreted as preclud- Article 33 EC...; and/or ing a Member State from applying national laws such as the Fair Trading Act 1973 and the Competition Act 1998 to the manner in which producers of milk choose to organise themselves (ii) the policy, aims or functioning into co-operatives and conduct them- of the common organisation of I - 7984

4. Where large vertically-integrated dairy (a) making use of the target price as an co-operatives exist and are permitted to indicator of the actual price move- operate in other Member States, is the ments due to the common agricul- general principle of non-discrimi- tural policy; and nation, whether independently or as given specific effect in Articles 12 and/or 34 EC..., to be interpreted as precluding a Member State from apply- ing national laws such as the Fair (b) treating the fact that a milk pro- Trading Act 1973 and the Competition ducers' co-operative in that State Act 1998 to prohibit a milk producers' has achieved for its members milk co-operative which has been found to prices that are below the target enjoy market power from: price, but are nearer to the target price in one period of time than another, as supporting a con- clusion that the co-operative exer- cises market power which con- tributes to prices being higher than they would have reached under more competitive conditions. (a) acquiring or building further plant for the processing of milk pro- duced by its members, which would give the co-operative the ability to exploit still further its 3. Are Articles 28 to 30 EC... and position in the market in its favour; Articles 49 and 55 EC... to be inter- or

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18. The United Kingdom questions the admissibility of the questions referred to the Court. It points out that the Report and the Decisions have been overtaken by events because, as a result of the voluntary dismembering of Milk Marque, the market 20. In this case, however, the referring power on which the investigation, the court has provided the Court of Justice Report and all subsequent decisions and with a detailed outline of the factual and recommendations were based has ceased to legal background to the main proceedings, exist. In so far as they concern possible and of the reasons why it has taken the future competition situations involving view that a ruling on the questions referred agricultural co-operatives, the questions is necessary for it to give judgment. In referred for a preliminary ruling are hypo- particular the national court states in the thetical. order for reference that in order to review the Decisions, it will need to consider the application of both the Fair Trading Act and the Competition Act, which came into force on 1 March 2000, and that an answer 19. According to established case-law, 6it to the question referred is therefore necess- is solely for the national court hearing the ary to enable it to rule effectively on the parties' rights and obligations, the auth- orities' jurisdiction, and the exercise of that 6 — See, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, jurisdiction under the two Acts. Moreover, paragraphs 59 to 61; Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 13; and Case C-97/98 Jägerskold the national court expressly does not con- [1999] ECR I-7319, paragraph 21. cur with the United Kingdom's view that

B. The first question referred, on the legal- ity of national measures to combat anti- competitive practices where an undertaking is dominant on a market that is governed 25. The first matter the Court of Justice is by a common organisation being asked to consider is therefore the extent to which the application of national competition rules to such producer organi- sations — in this case Milk Marque — is permissible under Community law. 22. It should be recalled at the outset that the United Kingdom was able to secure the integration of its system for organising the domestic milk market, of which the Milk Marketing Boards (hereinafter 'the 1. Arguments of the parties Boards') were the principal element, as part of its accession negotiations. Article 25 of Regulation No 804/68, as amended by Council Regulation (EEC) No 1421/78, 7 recognised the status of the Boards, which, amongst other things, had been given a 26. Milk Marque and the NFU contend monopoly on purchasing and selling. 8 that it is contrary to Community law for a Member State to apply national legislation

7 — of 20 June 1978 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk 9 — Case 23/84 Commission v United Kingdom [1986] products (OJ 1978 L 171, p. 12). ECR 3851; Case 347/85 Commission v United Kingdom 8 — See Winkler in Immenga/Mestmäcker, EG-Wettber- [1988] ECR 1749; Case 372/88 Cricket St Thomas [19901 werbsrecht, Vol. II, VO no. 26, paragraph 87 et seq. for ECR I-1345; and Case C-40/92 Commission v United further detail. Kingdom [1994] ECR I-989.

28. They argue that agricultural co-oper- atives and the sale of milk are subject to the common organisation of the market for milk and milk products established by Regulation No 804/68. One of the features of this market organisation is the target 30. Milk Marque and the NFU also take price which, Article 3 of the Regulation the view that, even from a competition law provides, is to be fixed annually by the standpoint, there is no scope for applying Council, and which reflects the way in national legislation, such as the Fair Trad- which the Community institutions recon- ing Act or the Competition Act. They cile the objectives of the common agricul- submit in this regard that, under the second tural policy set out in Article 33(1) EC, paragraph of Article 36 EC, Community including in particular that of ensuring a competition law in the agricultural sector is fair standard of living for the agricultural subject to the rules of the common agricul- community. In the view of Milk Marque tural policy and must be applied in accord- and the NFU it follows from the Court's ance with the objectives of Article 33 EC. case-law, particularly the judgment in Tof¬ The application of competition rules in the foli, 10that the adoption by a Member State agricultural sector is specifically governed by Regulation No 26. That Regulation makes it clear with regard to the subject 10 — Case 10/79 Toffoli [1979] ECR 3301. matter of this case — namely the organi-

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33. That submission, too, is founded on their allegation that the basis for the contested measures, namely a balancing of 35. In regard to competition law, it states the various interests involved, that is to say, that Article 2 of Regulation No 26 excludes a view as to what price is in the public only the application of Article 81(1) EC to interest, does not reflect the aims and the agricultural sector. The rules in objectives of the common agricultural pol- Article 82 EC on abuse of a dominant icy under Article 33(1) EC and is contrary position, however, apply to the agricultural to the target price, which represents a balancing of Community interests. The measures also undermine the effectiveness 11 — Milk Marque refers in that connection to the Opinion of Advocate General Tesauro in Case C-70/93 BMW v ALD and uniform application of Community [1995] ECR I-3439, points 36 to 40.

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sector in the usual way. 12 The Member none the less be arrived at on the basis of States are also, as is clear inter alia from the the operation of market forces and in Court's judgment in the Walt Wilhelm competitive conditions. The application of case, 13 permitted to apply national com- national competition legislation such as petition law in so far as this does not that at issue here helps to create such prejudice the uniform application through- conditions. out the common market of the Community competition rules and the full effect of the measures adopted in implementation of those rules. There could have been no such prejudice in this case because the Commis- sion has not taken any steps against Milk Marque pursuant to competition law. 2. Opinion

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40. That is because the agricultural sector on c o m p e t i t i o n , as is clear from is not an area which is 'free from compe- Article 34(1)(a) EC. These tools restrict tition' (see (i) below), and because the competition on the relevant markets. Com- applicability of Community competition petition can develop only if the individual law does not in principle preclude the common organisations of the markets leave application of national competition rules room for it to do so. None the less, while (see (ii) below). undoubtedly real, the tension between agricultural policy and open competition should not be overstated, since to some extent agricultural policy creates the con- ditions for undertakings to be able to compete freely. 15 (i) Competition is an essential component of the common agriculture market

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presupposes a certain level of compe- in the Chapter in the Treaty on competition tition. 17 apply in principle. Article 2(1) of Regu- lation No 26 merely contains various exceptions to the prohibition on cartels in Article 81(1) EC, exempting agreements that form an integral part of a national market organisation and those that are necessary for attainment of the objectives of the common agricultural policy set out 45. This also explains why the Court has in Article 33 EC. The Commission, which repeatedly held competition to be an essen- is supported on this point by the United tial component of the common agricultural Kingdom and the Dairy Industry Feder- policy. 18 Article 36 EC accordingly has the ation, is correct to emphasise that Regu- effect of deferring the application of the lation No 26 in no way limits the appli- Treaty rules on competition to the agricul- cation of Article 82 EC on abuse of a tural sector. 19 In view of the above con- dominant position. siderations, this is not to be understood as an exception, but as a necessity for histori- cal reasons. Because the various agricul- tural markets were very differently struc- tured when the Community began, a com- mon competition policy in the agricultural domain that went further than Article 34 47. The point is therefore that, so far as EC was conceivable only after the markets Community law is concerned, the appli- had been integrated and similar competi- cation of the Community competition rules tive conditions created. to the agricultural field generally is not in the nature of an exception but is integral to the system.

52. The contested measures do not fall within that definition because they relate precisely to the unregulated section of the relevant market. It may indeed be inferred 50. However it does not follow from that from the case-law that the prohibition on that every measure adopted by a national adopting prejudicial or conflicting meas- authority on the basis of domestic law is to ures also relates to measures that do not fall be regarded as a measure within the within the scope of the rules on market meaning of the case-law quoted above. organisation. 23 The reason for extending the scope of the prohibition is to preserve its effet utile. However, that should be irrelevant in regard to measures of compe- tition law. That is because if it is accepted that sections of agriculture not governed by a market organisation are open to free competition, then measures adopted by the Member States to guarantee such compe- tition may not, for the time being, be 51. In that connection I would refer to the treated as measures which, directly or Court's definition of a market organisation. indirectly, prejudice the instruments Extrapolating from the definition of a adopted to implement a market organi- national organisation of the market, 22 a sation. The United Kingdom is right to European organisation of the market may make the point in this connection that be defined as a totality of structural meas- Member States may, and indeed must, apply their criminal law also and specifi- cally to complement instruments giving 20 — S e e on this Case 10/79 Toffoli [1979] ECR 3 3 0 1 , paragraph 11 and Case 166/82 Commission v Italy [1984] effect to a common organisation of the ECR 459, paragraph 2 3 . There is no need to decide market. 24 whether Article 37(2) EC invests the Community with competing or exclusive jurisdiction since the Community has exercised its jurisdiction in the milk market, so it has exclusive jurisdiction for measures within the common agricultural policy in any event (see generally Case 23 — Case 31/74 Galli [1975] ECR 4 7 and Case 51/74 Van der C - 4 3 8 / 9 2 Rustica Semences [1994] ECR I - 3 5 1 9 , Hulst's v Prodshap voor Siergewassen [1975] ECR 7 9 ; paragraph 16). Case 65/75 Tasca [19761 ECR 2 9 1 ; Joined Cases 88/75 t o 21 — Case 111/76 Officier van Justitie v Van Den Hazel [1977] 90/75 SADAM [1976] ECR 323; Case 154/77 Dechmann ECR 9 0 1 , a n d Redmond, cited in f o o t n o t e 1 8 , [1978] ECR 1573. paragraphs 56 et seq. 24 — In that connection the United Kingdom cites Case 68/88 22 — Case 48/74 Charmasson v Minister for Economic Affairs Commission v Greece [1989] ECR 2 9 6 5 , paragraphs 23 et and Finance [1974] ECR 1383, paragraph 26. seq.

57. The Court has clarified the relationship between national competition law and the 54. That objection is not, however, per- Community competition rules in the Walt suasive. Milk Marque and the NFU's alter- Wilhelm case. 25According to its judgment native submission shows that the objectives in that case, the application of Community of the common agricultural policy can be law takes precedence over national legis- duly taken into account when the limits of lation on cartels. In the absence of any national competence are explored. There is Community rules, on the other hand, there therefore no reason why conflicts between is nothing to prevent the application of agricultural and competition policy should national legislation on cartels. The solution stand in the way of recognising the prin- devised for Article 81 EC is generally ciple that national competition authorities regarded as also applying to Article 82 do retain competence. EC.2«

58. However, the extent to which that (ii) The applicability in principle of solution may be transposed to the field of national law alongside Community compe- agriculture remains open to question, given tition law that it is only via the circuitous route of Regulation No 26 that the competition rules have been rendered applicable to it. What is beyond doubt is that the primacy of Community law applies to both primary and secondary law.

55. Milk Marque and the NFU consider that another reason why national compe- 25 — Cited in footnote 13. 26 — See Gavalda/Parleani, Droit des affaires de l'union Euro- tition law may not be applied is that peene, 3rd Edition, para. 410 and following.

61. Under Regulation No 26, Article 82 EC finds unlimited application in the agricul- tural field. But as Article 82 only relates to dominant positions on the common market or a substantial part thereof, many situ- 64. The limitations on national competence ations fall outside the Community compe- to apply national competition law follow tition provisions ab initio. Clearly, then, from the primacy of agricultural objectives the balance which Regulation No 26 seeks in the Treaty over competition objectives, to achieve in a manner that reflects the which is enshrined in Article 36 EC. 28 primacy, provided for in Article 36 EC, of agricultural over competition objectives cannot be regarded as exhaustive. 28 — On the supremacy of agricultural policy over the Treaty objectives in the field of competition, see Case 139/79 Maizena v Council [1980] ECR 3393, paragraph 23 a n d Case C-280/93 Germany v Council [1994] ECR I-4973, 2 7 — See points 41 et seq. above. paragraph 6 1 .

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65. National competition law must be 68. However, the Court has also stressed applied in a manner compatible with the that the goal of guaranteeing earnings in objectives of the common agricultural pol- Article 33(l)(b) EC is 'one of the main icy set out in Article 33 EC. aims' 30 of agricultural policy in the milk market.

29 —Case 27/85 Vandemoortele v Commission [1987] ECR 30 — Case 59/83 SA Biouilac v European Economic Community 1129, paragraph 20. [1984] ECR 4057, paragraph 16.

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national competition authorities intervened C. The remaining questions does not in itself mean that the contested measures contravene Community law. First, having a price as a guideline does not guarantee producers an income reflect- ing the target price and, secondly, the 1. The second question, on use of the target objective of securing a fair standard of price for the purposes of national compe- living certainly does not extend to attempts tition law to achieve such a standard of living by abusive means. Article 33(1)(b) EC cannot therefore justify an abuse of a dominant position, nor can measures taken to combat such an abuse be regarded as infringing that objective. (a) Arguments of the parties

78. How an undertaking's market power is to be assessed at national level is a matter (b) Opinion of national law. As is clear from my proposed reply to the first question, there is no objection in Community law to the basic principle that national proceedings may be brought to investigate whether a particular undertaking that holds a domi- nant position is abusing its economic position or not. Nor, therefore, is there in 76. Article 234 EC provides that the Court principle any objection to using the target of Justice is to give preliminary rulings, price to evaluate an undertaking's market inter alia, on the interpretation of the power, by looking at variations in actual Treaty and acts of the Community institu- prices in comparison with the target price. tions. Consequently, according to settled case-law, the Court does not have jurisdic- tion to interpret national law on a reference for a preliminary ruling. 31

79. This practice does not affect the status of the target price as an instrument of market policy. 77. By its second question, the national court is essentially asking whether the common organisation of the market for milk and milk products precludes using the target price under Article 3 of Regulation No 804/68 when analysing an undertak- ing's market power in national proceed- ings. Contrary to the view of the United 80. The reply to the second question must Kingdom, this is a question of Community therefore be that the function of the target price under Article 3 of Regulation No 804/68 does not preclude that price 31 — See Case 75/63 Unger v Bedrijfsvereniging voor Detail- being used for the purposes of proceedings handel en Ambachten [1964] ECR 177 and Case C-309/96 Annibaldi |1997] ECR I-7493, paragraph 13. before a national competition authority. I - 7998

82. The Commission points out that, (a) Arguments of the parties according to the settled case-law of the Court, Article 29 EC applies only to national measures which have as their specific object or effect the restriction of patterns of exports and thereby the estab- lishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a particular advantage for national production or for the domestic 81. With regard to the third question, Milk market of the State in question. It also Marque refers to the interim measures observes that Article 28 EC does not apply established by the contested measures, and to goods that are exported purely for in particular the fact that Milk Marque was re-importation in order to circumvent a to be prevented from entering into further provision of national law. In the Commis- 'contract processing arrangements', i.e. sion's view, exporting milk for the purposes milk processing contracts with undertak- of processing in other Member States ings in other Member States. The interim should not be deemed to constitute a supply measures not only limit the export of raw of a service but of goods, pursuant to Case milk from the United Kingdom contrary to 18/84. 32 Article 29 EC, they also prohibit imports and exports of milk products between Member States. They therefore constitute quantitative restrictions on imports and exports within the meaning of Articles 28 and 29 EC. By preventing Milk Marque from using processing services in other Member States, the interim measures also 83. The United Kingdom and the Dairy infringe the freedom to provide services, Industry Federation concur for the most contrary to Article 49 EC. Milk Marque part with the Commission. Even if the says there is no effective justification for contested measures are deemed to consti- these restrictions. They were imposed for tute restrictions on the freedom to provide purely economic reasons, to secure a supply services within the meaning of Article 49 of inexpensive domestic milk to national EC, they can, because they are non-dis- processors. The restrictions are also dis- criminatory. The exceptions in Articles 30 and 46 EC do not apply because this field 32 — Case 18/84 Commission v France [1985] ECR 1339.

85. First of all, such a measure must be 88. Whether the measures in the main examined only under the Treaty provisions proceedings do have this as their object or on the free movement of goods. This may effect is open to question because they be inferred from the Court's case-law, prevent processing in the domestic market according to which a service that 'leads as well as in other Member States. It is not directly to the manufacture of a physical necessary to resolve the point, however, article' is to be considered under the free since, under the Court's case-law, reliance movement of goods rules alone, since the freedom to provide services is, pursuant to Article 50 EC, secondary in nature. 33 34 — Case 15/79 Croenvald [1979] ECR 3409, paragtaph 7; Case 155/80 Oebel [1981] ECR 1993, paragraph 15; Case C-47/90 Delhaize et le Lion [19921 ECR I-3669, paragraph 12; Case C-203/96 Dusseldorp and Others [19981 ECR I-4075, paragraph 40; and Case C-388/95 33 — Case 18/84 cited in footnote 32, point 12. Belgium v Spain [2000] ECR I-3123, paragraph 41.

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may not be placed on basic freedoms if they (3) The fourth question on the prohibition are only invoked to circumvent a national of discrimination rule. In this connection the Commission rightly cites the Leclerc v Au blé vert 35 case, which decided that Article 28 EC may not be relied on where the goods in question 'were exported for the sole pur- pose of re-importation in order to circum- vent legislation of the type at issue'. 3 6It should be noted that the Court only (a) Arguments of the parties referred to Article 28 EC in that case.

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disparities in treatment or distortions, treatment or the distortions which may within the meaning of the Walt Wilhelm result, for the persons and undertakings judgment, 37 which result from divergences subject to the jurisdiction of the Commu- between the laws of the various Member nity, from divergences existing between the States that apply in accordance with objec- laws of the various Member States, so long tive criteria and without regard to national- as the latter affect all persons subject to ity. them, in accordance with objective criteria and without regard to their nationality'. 38

93. The United Kingdom Government and the Dairy Industry Federation also consider that there was no discrimination, or in so far as there may have been discrimination, that it was justified on objective grounds. 96. Milk Marque and the NFU also argue that the contested measures constitute 'dis- crimination between producers or con- sumers within the Community', contrary to Article 34(2) EC.

(b) Opinion

(1) Articles 32 EC to 38 EC, Council Regulation No 26 and Council Regulation (EEC) No 804/68, as amended, are to be interpreted as in principle not precluding a Member State from applying national laws to combat abuses by a cooperative of milk producers found to enjoy market power, provided that the national competition authorities balance the various objectives set out in Article 33 EC. It is for the national court to examine whether the national authorities have carried out that balancing operation. The objective in Article 33(1)(b) EC of increasing producers' earnings cannot be relied on to justify an abuse of a dominant position.

(2) The function of the target price under Article 3 of Regulation (EEC) No 804/68 does not preclude that price being used by a Member State for the purposes of investigating the pricing policy of such a co-operative and any market power it may enjoy. I - 8003

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(3) Articles 28 EC to 30 EC do not preclude a Member State from applying national laws of the kind here at issue in such a way as to prohibit a milk producers' co-operative which has been found to enjoy market power from sending milk produced by its members to be processed by contractors on its behalf, including in other Member States, where application of such laws is intended to prevent abuse of a dominant position.

(4) Neither the general prohibition on discrimination, nor Articles 12 EC or 34(2) EC in which that prohibition finds expression, in principle preclude the application of national laws of the kind in point here that prohibit a producers' co-operative found to enjoy market power from acquiring or setting up additional milk processing plants, or from sending milk to be processed on its behalf to contractors either in the Member State in question or in other Member States, where such measures are adopted in order to prevent abuse of a dominant position.