A company that holds a dominant position may not abuse that position. If it does, an aggrieved market party may take legal action against it. That market party must then produce sufficient evidence of restriction of competition, particularly if the dominant company is accused of discrimination. That was demonstrated by a dispute between estate agents association VBO and property website Funda (a division of estate agents association NVM).
VBO instituted legal proceedings some years ago, arguing that Funda discriminated against the houses of estate agents affiliated with VBO in the ranking of properties and charged them discriminatory rates compared with NVM estate agents. The court found in 2018 that it is not prohibited to apply unequal terms. Abuse requires that a company’s competitive position is distorted. That had not been demonstrated in the court’s opinion, because experts had found that the total costs for VBO and NVM estate agents did not differ significantly and there were no unequivocal indications that the subordinated ranking gave rise to a competitive disadvantage. VBO filed an appeal against the judgment.
With reference to the MEO and Intel judgments, the Court of Appeal first of all found that no practices had taken place that constituted abuse per se, but that an individual analysis must be made in each case. VBO was required to clearly set out the competition parameters and the alleged effects. The Court of Appeal ruled that VBO had furnished insufficient facts to assume that a lower ranking might distort the competition between estate agents. It furthermore emphasised that discrimination of trading partners may constitute abuse only if it has as its object a restriction of competition between those trading partners. VBO had failed to provide sufficient information to demonstrate that the VBO estate agents were being harmed by Funda’s rates.
The Court of Appeal also rejected VBO’s argument that Funda had to give the VBO estate agents access to its database. A company with a dominant position is free, in principle, to determine with whom and on what conditions it wishes to enter into an agreement. It is not apparent from VBO’s arguments that the database is an essential facility in order to compete on the market. The same applies to VBO’s complaint regarding the lack of access to promotional services of Funda. Also on that point VBO had provided insufficient evidence to assume that the VBO estate agents were hindered by that fact.
This judgment of the Court of Appeal demonstrates that a claimant that relies on the ban on abuse of a dominant position on the grounds of discrimination of trading partners must provide sufficient evidence of the specific effects on the market.
This blog was previously published on Mr-online.
Information on dawn raids by the ACM and the European Commission can be found at invalacm.nl
