Request for a preliminary ruling from the Sø- og Handelsret (Denmark) lodged on 16 January 2014 – Post Danmark A/S v Konkurrencerådet

(Case C-23/14)

Language of the case: Danish

Referring court

Sø- og Handelsret

Parties to the main proceedings

Applicant: Post Danmark A/S

Defendant: Konkurrencerådet

Intervener: Bring Citymail Denmark A/S

Questions referred

What guidelines should be used to decide whether the application by a dominant undertaking of a rebate scheme with a standardised volume threshold having the characteristics referred to in points 10 and 11 of the order for reference constitutes an abuse of a dominant position contrary to Article 82 of the EC Treaty?

In its answer the Court is requested to clarify what relevance it has to the assessment whether the rebate scheme’s thresholds are set in such a way that the rebate scheme applies to the majority of customers on the market.

In its answer the Court is further requested to clarify what relevance, if any, the dominant undertaking’s prices and costs have to the evaluation pursuant to Article 82 of the EC Treaty of such a rebate scheme (relevance of a ‘competitor as efficient’ test).

At the same time the Court is requested to clarify what relevance the characteristics of the market have in this connection, including whether the characteristics of the market can justify the foreclosure effect being demonstrated by examinations and analyses other than a ‘competitor as efficient’ test (see, in that regard, paragraph 24 of the Commission’s communication on the application of Article 82).

How probable and serious must the anti-competitive effect of a rebate scheme having the characteristics referred to in points 10 and 11 of the order for reference be for Article 82 of the EC Treaty to apply?

Having regard to the answers given to Questions 1 and 2, what specific circumstances must the national court take into account in assessing whether a rebate scheme, in circumstances such as those described in the order for reference (characteristics of the market and the rebate scheme), has or is capable of having such a foreclosure effect in the specific case that it constitutes an abuse covered by Article 82 of the EC Treaty?

In this connection, is it a requirement that the foreclosure effect is appreciable?