Judgment delivered on 15 February 2013.
Post Danmark A/S
The Danish Competition Council
Intervener for the Competition Council: Forbruger-Kontakt a-s
Post Danmark had not abused its dominant position on the market for distribution of unaddressed mail
On 29 September 2004, the Competition Council held that the Danish post office, Post Danmark, had abused its dominant position on the market for unaddressed mail in Denmark by charging different prices from Post Danmark's own customers and Forbruger-Kontakt a-s' former customers Coop, Spar and SuperBest in 2003 and 2004.
The decision was subsequently upheld by the Competition Appeals Tribunal and the Eastern High Court.
In connection with the preparation of the case before the Supreme Court, two preliminary questions were referred to the EU Court of Justice regarding the interpretation of art. 82 of the EC Treaty (now art. 102 TFEU) concerning abuse of a dominant position.
Based on the Court of Justice's reply to these questions, the Competition Council withdrew the claim that the prices charged by Post Danmark from Spar and SuperBest in themselves amounted to abuse of a dominant position. Consequently, this part of the Competition Council's decision was revoked.
With regard to the prices charged by Post Danmark from Coop, the Supreme Court found that the Competition Council's decision was not based on an examination and assessment of the issue of exclusionary abuse corresponding to that required according to the Court of Justice's judgment. For this reason, the decision should also be revoked in respect of Coop, unless the Competition Council had established that the decision was nevertheless correct under the criteria laid down in the EU judgment. Under these criteria, Post Danmark's pricing policy towards Coop should have lead to Forbruger-Kontakt's likely exclusion from the market to the detriment of competition, if the Competition Council had not intervened. Based on an overall assessment, the Supreme Court found that the Competition Council had not proven this to be the case.
Accordingly, the Competition Council's decision was rescinded, and the Supreme Court, thus, amended the Eastern High Court's judgment.