The prohibition of abuse of a dominant position laid down by the Treaties permits an ex post control, at national level, of a concentration of undertakings with a non-Community dimension
Pubblicato il 21/03/23 00:00 [Doc.11828]
di Corte di giustizia dell'Unione europea - UE

Judgment of the Court in Case C-449/21 | Towercast

The temporal effects of a judgment of the Court confirming the applicability of that prohibition should not be limited The Digital Terrestrial Television (DTT) platform has been in use in France since 2005. The main DTT network operator is the company TDF, which, until that point, had enjoyed a State monopoly on the French terrestrial television broadcasting market. The liberalisation of the French audiovisual area enabled, inter alia, Towercast and Itas - competitors of TDF - to enter the broadcasting market. In 2016, TDF acquired sole control of Itas thanks to an acquisition operation which was below the thresholds laid down by the EU Merger Regulation 1 and by the French Commercial Code: it was therefore not notified or examined under the prior control of concentrations. Moreover, that operation did not give rise to a procedure for referral to the Commission under Article 22 of the Merger Regulation. Towercast considers that the aquiring of control of Itas by TDF constitutes a breach of the prohibition of abuse of a dominant position laid down by primary EU law (Article 102 TFEU). According to Towercast, TDF is hindering competition on the upstream and downstream wholesale markets for DTT broadcasting services by significantly strengthening its dominant position on those markets. The French Competition Authority having rejected the complaint lodged by Towercast, the latter has brought an appeal before the cour d'appel de Paris (Court of Appeal, Paris, France). That court asks the Court of Justice whether it is possible for a national competition authority to carry out, in view of the prohibition of abuse of a dominant position laid down by EU law, an ex post control of a concentration operation performed by an undertaking in a dominant position, where that concentration remains below the relevant turnover thresholds laid down by the Merger Regulation and by the national law on concentrations and has thus not been subject to an ex ante control in that regard.
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