Competition: The European Court held that refusing a rival access to newspaper home delivery service did not amount to abuse of a dominant position.

Under a recent ruling from the ECJ a press undertaking operating a nation-wide newspaper home delivery service has been allowed to refuse a rival access to its service. In the circumstances of the case, the ECJ held that such denial, even where appropriate remuneration is offered, did not amount to an abuse of dominant position within the meaning of Article 86 of the EC Treaty.

The question was raised in connection with an action brought by Oscar Bronner against Mediaprint. The ECJ declared it had jurisdiction to give an Article 177 ruling on the interpretation of Article 86 even though the national court proceedings only concerned the equivalent provisions in national competition law. The reasoning behind its decision on jurisdiction was based on the supremacy of EC law. While both EC and national competition law apply in such situations, national competition law may not produce a different result to that under EC competition law.

The ECJ held that for an abuse of dominant position to exist, it was necessary that (i) the refusal of the service was likely to eliminate all competition in the daily newspaper market on the part of the person requesting the service, (ii) such refusal was incapable of being objectively justified, and (iii) the service in itself was indispensable to carrying on that person’s business, inasmuch as there was no actual or potential substitute in existence for that home delivery scheme. The ECJ concluded that in this case the service was not indispensable. Other methods of distributing daily newspapers, such as by post and through sale in shops and at kiosks existed and were used by the publishers of other daily newspapers. Furthermore, there were no technical, legal or even economic obstacles capable of making it impossible, or even reasonably difficult, for any other publisher of daily newspapers to establish, alone or in co-operation with other publishers, its own nation-wide home delivery scheme and use it to distribute its own daily newspapers. (Oscar Bronner and Mediaprint, Case C-7/97, Judgment of 26 November 1998)