Short Reads

General market studies are insufficient proof to establish dominance, two Dutch District Courts rule

General market studies are insufficient proof to establish dominance,

General market studies are insufficient proof to establish dominance, two Dutch District Courts rule

02.07.2018 NL law

In two recently published Dutch District Court judgments, the high evidentiary standard for invoking competition law arguments in civil proceedings was confirmed.

Pursuant to standing case law of the Dutch Supreme Court, a party invoking an infringement of EU or Dutch competition law is required to substantiate such a claim with relevant (economic) facts and circumstances in order to allow for an adequate and reasoned (economic) debate. Specifically, the two recent judgments reaffirm that claimants cannot solely rely on general market studies of national competition authorities or commercial firms to substantiate their claims.

In the first case, the Noord-Holland District Court held that Amsterdam international airport Schiphol did not abuse a dominant position. The question arose in civil proceedings after Schiphol terminated a concession and rent contract with VATFree, a provider of VAT refund assistance services, thus terminating VATFree's presence at Schiphol. VATFree argued that access to Schiphol is pivotal for reaching its target group – that is, visitors from non-EU countries. On that basis, it argued that terminating the contracts granting this access amounted to abuse of dominance by Schiphol.

According to the District Court, VATFree failed to meet the high evidentiary standard. It had only relied on a 2010 report from the Dutch Authority for Consumers and Markets, in which it was found that Schiphol had a dominant position on the market for passenger handling services. However, the District Court found that the scope of that report and the relevant market is limited to activities directly ancillary to aviation activity as defined in the Amsterdam Airport (Operation) Decree 2006. The District Court understood this as encompassing only those activities without which it is impossible for passenger aircrafts to take off and land. In this sense, VAT refund assistance services are too far removed from aviation activity to be covered by the report and hence the plaintiff's claims were not sufficiently substantiated.

In the second case, the Gelderland District Court dismissed a claim based on abuse of dominance in the market for propionate, a component for animal feed. It found that the market study the claimant relied on was insufficient to establish dominance, since the report did not give sources or sufficient reasons for the market share figures it contained. The claimant's own, additional estimates as to the respondent's market share could not save its claims.

These judgments serve as a reminder that Dutch courts are reluctant to allow complaints based on competition law in civil proceedings in the absence of detailed, case-specific and relevant documentation substantiating the existence of dominance and the alleged infringement.

 

This article was published in the Competition Law Newsletter of July 2018. Other articles in this newsletter:

  1. General Court delivers judgments on the scope of dawn raid decisions
  2. Excessive pricing findings set aside by UK court in prominent pharma ruling

Team

Related news

04.01.2019 NL law
Guess what, online branding restrictions are on the Commission's radar

Short Reads - Companies are probably aware of the Commission's eagerness to clamp down on online resale price maintenance and geo-blocking restrictions. The recent fine for vertical restraints by clothing company Guess marks a new dot on the Commission's radar. Restrictions on retailers using a supplier's brand names for online search advertising purposes are just as much a no-go.

Read more

08.01.2019 EU law
Belgium's Energy & Climate Plan - What is the legislative framework for climate policy in Belgium?

Articles - On 19 December 2018, Belgium adopted the first version of the National Energy & Climate Plan, which is a compilation of three individual climate plans from each of Belgium’s regions. It contains specific measures aiming to reduce CO2 emissions in Belgium by 35% by 2030 and to increase the share of renewable energy to 18.3%. The Plan will be submitted to the European Commission and, at the same time, presented to the population, stakeholders, parliaments, and neighboring countries.

Read more

04.01.2019 NL law
Partial fine reduction for Deutsche Telekom and Slovak Telekom for abuse of dominance

Short Reads - The General Court recently clarified that to establish a margin squeeze in the case of positive margins, the Commission needs to prove the exclusionary effects of the dominant company's pricing practices. It also indicated that in cases of refusal to grant access, it is not always necessary to establish the indispensability of the access.

Read more

04.01.2019 NL law
Walking the tightrope between data protection and EU investigations

Short Reads - Two recent publications confirm that it is possible for companies to cooperate with a European Commission investigation and still comply with the data protection rules. It is also possible for the Commission to deviate from certain data protection obligations in the interest of a competition law investigation. The tightrope between data protection and Commission investigations may not be as rigid as initially feared.

Read more

04.01.2019 NL law
General Court dismisses Canal+ appeal against pay-TV commitment decision

Short Reads - The General Court recently dismissed the appeal brought by Canal+ against the decision of the European Commission making the commitments of Paramount legally binding. In 2015, the Commission sent a Statement of Objections alleging that certain geo-blocking clauses in licensing agreements between film studios and pay-TV broadcasters had the object of restricting cross-border competition.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring