[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner. 　　

[background] 　　

The European Court of Justice ruled that the two sides in the dispute were telecom operators MEO Company and the Portuguese market competition Authority. The dispute stems from MEO The company filed a complaint with the Portuguese market competition authority against the copyright collective Management Organization GDA Alleged price discrimination. MEO Corporate action, GDA to MEO The quotation is higher than that given MEO The price of other competitors providing the same service, violate "European Union operation Treaty (Treaty on the Functioning of the European Union) " The first 102 Provision of article, Constitutes abuse of a dominant market position. 　　

After receiving a complaint from the Portuguese market competition authority, It is considered upon examination that, GDA Provide to MEO quote, Take into account MEO The cost of the company's television transmission service, Income and income structure, etc, It does not affect the company's competitive position in the market, That is, there is no harm to market competition, Therefore, Rule against MEO The company's complaint. In addition, The authority also noted that, A dominant firm does not have to be discriminatory, Must violate competition laws and regulations. 　　

MEO The company disagrees with the above administrative ruling, To compete in the Portuguese market, The supervisory court filed a lawsuit, The complaint alleges that the Portuguese competition authority in making the administrative decision, Only examine whether the conduct in question seriously affects fair competition, However, no conclusion has been drawn on the fact that competition behavior itself affects fair competition. After the court accepts, Find out after hearing, GDA It does have a dominant market position in relevant markets, But at the same time think, An operator that provides pay-TV transmission services (supra MEO company) In the collective management organization with copyright (supra GDA) In negotiation, It also has considerable negotiating power. Therefore, The hearing court decided to suspend the proceedings, Appeal to the European Court of Justice (Court of Justice) To make preliminary rulings on relevant issues. 　　

[conclusion] 　　

The European Court of Justice concluded that the question submitted by the Court of Admissibility was, Determine whether there is "European Union operation Treaty" The first 102 article 2 paragraph (c) specified "Affected parties are placed at a competitive disadvantage" situation, Whether it is necessary to analyze the specific impact of the differential prices provided by the dominant players on the affected players' competitive position in the market, And in certain situations, Whether you also need to consider the severity of the impact? 　　

The clause provides that, (In the same transaction situation) Apply different conditions, It puts one party at a competitive disadvantage, And affect trade practices among member countries. The European Court of Justice held that, The clause is designed to ensure that market players are neither favoured nor oppressed in competition, Maintain fair competition in the internal single market. The behavior of a dominant market entity shall not affect its upstream and downstream markets——That is, the supplier and consumer market of the subject——Competitive situation. Therefore, Judge that there is abuse of dominant position, The act is not required to affect the market in which the agent operates——Compared to its own potential competitors——Competitive position. 　　

In order to satisfy the applicability "European Union operation Treaty" The first 102 article 2 paragraph (c) The conditions stipulated in, In addition to proving that the dominant player has engaged in discriminatory conduct, It should also be proved that the object of the subject's conduct in dispute was to interfere with fair competition. 　　

Just like the presiding officer in this case (Advocate General) As noted in the legal advice, It is simply the fact that one player pays more than the other for the same service, It is not sufficient to prove that fair competition between the subject and other competitors has been interfered with or broken. Only a comprehensive review of all the facts of the case, including at least the following aspects: 　　

1) The dominant market position of the firm; 　　

2) The negotiating power of both parties to determine the final price; 　　

3) The factors and conditions taken into account in setting the current price; 　　

4) Specific amount of price; and, 　　

5) Whether there is a purpose to exclude competitors from the relevant market, And so on　　

To know if it exists "Operators are placed at a competitive disadvantage" The situation of. 　　

After reviewing the facts and evidence presented in this case, European court of justice: 　　

1) with GDA In the negotiations, MEO The company has certain negotiating strength; 　　

2) GDA The price offered is lower than MEO The cost of the services provided by the company, namely, The price is not correct MEO A serious impact on the company's earnings; 　　

3) will MEO Companies are excluded from relevant markets, Not be able to GDA Bring any benefit. 　　

Finally, The European Court of Justice judges accepted the legal advice of the presiding officer in the case, Think that, Determine whether there is abuse of a dominant market position, No minimum threshold should be set, As long as a discriminatory behavior has no serious impact on the competitive position of the operator in the relevant market, It can be concluded that its competitive position has not been affected. 　　

To sum up, European court of justice ruling, After examining all the facts of the case, If it is possible to determine the cost of the discriminatory act to the discriminated party, Income or "Other relevant interests" impactful, It should be found that such discrimination interferes with fair competition, Place the discriminated party "Competitive disadvantage" status. 　　

[comment] 　　

Prior precedents on similar issues (Intel case, (Case number: C-413/14 P) ) On the basis of, The European Court's ruling focused on the criteria that constituted a breach of competition rules, To some extent, Applicable regulation 102 Article provision, It depends on the extent to which anti-competitive behaviour actually has consequences for the relevant market, Not just the objective fact that there is an infringement. 　　Considering that the European Court of Justice's rulings over the past few years have consistently followed the same principle, The ruling is not a turning point for the court's theory. but, This case does affirm the recent emergence of effect analysis theory. 　　

In addition, In recent years, Copyright collective management organization after receiving several adverse rulings from the European Court of Justice, The ruling of this case undoubtedly consolidated the position of copyright collective management organizations in the European market, Affirming that it is being formulated, Negotiation and fee collection practices. 　　

compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights