Abstract
Although the instances of application of Article 102(c) TFEU can hardly be described as rare, to date it has been applied to essentially two sets of diverging situations, namely to discrimination on grounds of nationality on the one hand, and other forms of discrimination on the other. While there is a relatively high number of instances of the former category of applications, and the criteria of the application of Article 102(c) TFEU to such situations seem straightforward, fewer cases exist in which Article 102(c) TFEU was applied to non-exclusionary secondary line discrimination on grounds other than nationality, and the criteria of application are arguably less clear. The judgment in case C-525/16 MEO represents a significant, yet not a revolutionary step in its interpretation. While in some respects, it may be seen as bringing some novelty (for example, the delineation of the respective scopes of application of Article 102(b) and Article 102(c) TFEU), in others (that is, the notion of competitive disadvantage), it rather confirms the principles which have been previously established. Arguably, the Court’s teaching on the elements which the competition authorities and courts across the EU may have at their disposal to establish the existence of competitive disadvantage, within the meaning of Article 102(c) TFEU, is open to various interpretations. Yet it does to a certain extent shape the toolkit that these authorities and courts may have at their disposal and leaves some room for reasonable welfare related arguments.
Highlights
JAN SZCZODROWSKI the respective scopes of application of Article 102(b) and Article 102(c) TFEU), in others, it rather confirms the principles which have been previously established
Bien que les cas d’application de l’article 102, point c), du TFUE puissent difficilement être considérés comme rares, ils ont été appliqués jusqu’à présent à deux ensembles de situations essentiellement différentes: la discrimination fondée sur la nationalité, d’une part, et les autres formes de discrimination, d’autre part
In 2014, MEO lodged a complaint with the Portuguese NCA in which it claimed that GDA infringed the provision of national law, the wording of which is identical to Article 102(c) TFEU
Summary
The case at hand was brought by MEO, a Portuguese provider of telecommunication and TV-related services against the decision of the national competition authority (hereinafter: NCA) to reject its complaint against GDA, a collecting society in charge of managing the rights of artist and performers in Portugal. In 2014, MEO lodged a complaint with the Portuguese NCA in which it claimed that GDA infringed the provision of national law, the wording of which is identical to Article 102(c) TFEU. According to MEO, GDA (which is the sole body responsible for the collective management of the aforementioned category of rights in Portugal), applied three different tariffs simultaneously to its customers (that is, providers of pay TV services such as MEO). According to MEO, GDA charged a different (higher) tariff than the one it applied vis-à-vis MEO’s direct competitor, NOS. The decision of the Portuguese NCA was challenged before the Portuguese competition law tribunal, which referred to the CJEU a series of questions concerning the interpretation of Article 102(c) TFEU
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