JUDGMENT OF THE COURT (Sixth Chamber)

26 November 1998 (1)

(Article 86 of the EC Treaty — Abuse of a dominant position — Refusal of amedia undertaking holding a dominant position in the territory of a MemberState to include a rival daily newspaper of another undertaking in the sameMember State in its newspaper home-delivery scheme)

In Case C-7/97,

REFERENCE to the Court under Article 177 of the EC Treaty by theOberlandesgericht Wien (Austria) for a preliminary ruling in the proceedingspending before that court between

Oscar Bronner GmbH & Co. KG

and

Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG,

Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG,

Mediaprint Anzeigengesellschaft mbH & Co. KG,

on the interpretation of Article 86 of the EC Treaty,

THE COURT (Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, J.L. Murray, H. Ragnemalm, R. Schintgen (Rapporteur) and K.M. Ioannou, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Oscar Bronner GmbH & Co. KG, by Christa Fries, Rechtsanwältin, Baden,

—    Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, MediaprintZeitungsvertriebsgesellschaft mbH & Co. KG and MediaprintAnzeigengesellschaft mbH & Co. KG, by Stephan Ruggenthaler,Rechtsanwalt, Vienna,

—    the Commission of the European Communities, by Klaus Wiedner andWouter Wils, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Oscar Bronner GmbH & Co. KG, MediaprintZeitungs- und Zeitschriftenverlag GmbH & Co. KG, MediaprintZeitungsvertriebsgesellschaft mbH & Co. KG, Mediaprint AnzeigengesellschaftmbH & Co. KG and the Commission at the hearing on 10 February 1998,

after hearing the Opinion of the Advocate General at the sitting on 28 May 1998,

gives the following

Judgment

1.

    By order of 1 July 1996, received at the Court on 15 January 1997, theOberlandesgericht Wien (Higher Regional Court, Vienna), in its capacity as theKartellgericht (court of first instance in competition matters), referred to the Courtfor a preliminary ruling under Article 177 of the EC Treaty two questions on theinterpretation of Article 86 of the Treaty.

2.

    The questions were raised in connection with an action brought by Oscar BronnerGmbH & Co. KG ('Oscar Bronner‘) against Mediaprint Zeitungs- undZeitschriftenverlag GmbH & Co. KG, Mediaprint ZeitungsvertriebsgesellschaftmbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG (hereinafter

collectively referred to as 'Mediaprint‘) under Paragraph 35 of the Bundesgesetzüber Kartelle und andere Wettbewerbsbeschränkungen (Federal Law on Cartelsand other Restrictive Practices; 'the Kartellgesetz‘) of 19 October 1988 (BGBl.1988, p. 600), as amended in 1993 (BGBl. 1993, p. 693) and 1995 (BGBl. 1995,p. 520).

3.

    Paragraph 35(1) of the Kartellgesetz provides:

'The Kartellgericht shall, upon application, order the undertakings concerned tobring the abuse of a dominant position to an end. Such abuse may consist, inparticular, of:

1.    directly or indirectly imposing unfair purchase or selling prices or othertrading conditions;

2.    limiting production, markets or technical development to the detriment ofconsumers;

3.    placing other trading parties at a competitive disadvantage by applyingdissimilar conditions to equivalent transactions;

4.    making the conclusion of contracts subject to the acceptance by othertrading parties of supplementary obligations which, by their nature oraccording to commercial usage, have no connection with the subject-matterof such contracts.‘

4.

    The objects of Oscar Bronner are the editing, publishing, manufacture anddistribution of the daily newspaper Der Standard. In 1994, that newspaper's shareof the Austrian daily newspaper market was 3.6% of circulation and 6% ofadvertising revenues.

5.

    Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG publishes the dailynewspapers Neue Kronen Zeitung and Kurier. It carries on the marketing andadvertising business of those newspapers through two wholly-owned subsidiaries,Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and MediaprintAnzeigengesellschaft mbH & Co. KG.

6.

    In 1994, the combined market share of Neue Kronen Zeitung and Kurier was 46.8%of the Austrian daily newspaper market in terms of circulation and 42% in termsof advertising revenues. They reached 53.3% of the population from the age of 14in private households and 71% of all newspaper readers.

7.

    For the distribution of its newspapers, Mediaprint has established a nationwidehome-delivery scheme, put into effect through the intermediary of Mediaprint

Zeitungsvertriebsgesellschaft mbH & Co. KG. The scheme consists of deliveringthe newspapers directly to subscribers in the early hours of the morning.

8.

    In its action under Paragraph 35 of the Kartellgesetz, Oscar Bronner seeks anorder requiring Mediaprint to cease abusing its alleged dominant position on themarket by including Der Standard in its home-delivery service against payment ofreasonable remuneration. In support of its claim, Oscar Bronner argues that postaldelivery, which generally does not take place until the late morning, does notrepresent an equivalent alternative to home-delivery, and that, in view of its smallnumber of subscribers, it would be entirely unprofitable for it to organise its ownhome-delivery service. Oscar Bronner further argues that Mediaprint hasdiscriminated against it by including another daily newspaper, Wirtschaftsblatt, in itshome-delivery scheme, even though it is not published by Mediaprint.

9.

    In reply to those arguments, Mediaprint contends that the establishment of itshome-delivery service required a great administrative and financial investment, andthat making the system available to all Austrian newspaper publishers would exceedthe natural capacity of its system. It also maintains that the fact that it holds adominant position does not oblige it to subsidise competition by assisting competingcompanies. It adds that the position of Wirtschaftsblatt is not comparable to thatof Der Standard, since the publisher of the former also entrusted the Mediaprintgroup with printing and the whole of distribution, including sale in kiosks, so thathome-delivery constituted only part of a package of services.

10.

    Taking the view that, if the conduct of a market participant falls within the termsof Article 86 of the EC Treaty it must logically constitute an abuse of the marketwithin the meaning of Paragraph 35 of the Kartellgesetz which is analogous incontent, since under the principle of the primacy of Community law conduct whichis incompatible with the latter cannot be tolerated under national law either, theKartellgericht decided that it first needed to resolve the question whether theconduct of Mediaprint infringed Article 86 of the Treaty. Referring subsequentlyto the fact that Article 86 of the Treaty applies only if trade between MemberStates is capable of being affected by the conduct of traders in breach, theKartellgericht found that condition met in the main proceedings, since refusal ofaccess to the home-delivery scheme could have the effect of completely excludingOscar Bronner from the daily newspaper market and Oscar Bronner, as publisherof an Austrian daily newspaper also sold abroad, participated in international trade.

11.

    In those circumstances, the Kartellgericht decided to stay the proceedings and referthe following questions to the Court of Justice for a preliminary ruling:

    '(1)    Is Article 86 of the EC Treaty to be interpreted in such a way that there isan abuse of a dominant position, in the sense of an abusive barring ofaccess to the market, where an undertaking which carries on thepublication, production and marketing of daily newspapers, and with itsproducts occupies a predominant position on the Austrian market for daily

newspapers (46.8% of total circulation, 42% of advertising revenue and 71%range of influence, measured by the number of all daily newspapers), andoperates the only nationwide home-delivery distribution service forsubscribers, refuses to make a binding offer to another undertaking engagedin the publication, production and marketing of a daily newspaper in Austriato include that daily newspaper in its home-delivery scheme, in the light alsoof the circumstance that it is not possible, on account of the smallcirculation and the consequently small number of subscribers, for theundertaking seeking inclusion in the home-delivery scheme to build up itsown home-delivery scheme for a reasonable cost outlay and operate itprofitably, either alone or in cooperation with the other undertakingsoffering daily newspapers on the market?

(2)    Does it amount to an abuse within the meaning of Article 86 of the ECTreaty, where, under the circumstances described at (1) above, the operatorof the home-delivery scheme for daily newspapers makes the entry intobusiness relations with the publisher of a competing product dependentupon the latter entrusting him not only with home deliveries but also withother services (e.g. marketing through sales points, printing) within thecontext of an overall package?‘

Admissibility

12.

    Mediaprint and the Commission contend that the dispute in the main proceedingsconcerns solely Austrian competition law, and in particular Paragraph 35 of theKartellgesetz. They maintain that the Kartellgericht is specialised in the applicationof national competition law and does not have jurisdiction to apply Article 86 ofthe Treaty, which moreover it could not apply directly.

13.

    They also argue that, in principle, national law applies in parallel with, andindependently of, Community law, and that, in accordance with the judgment inCase 14/68 Walt Wilhelm v Bundeskartellamt [1969] ECR 1, it is only when theimplementation of national competition law threatens the uniform application ofCommunity competition rules throughout the common market and the fulleffectiveness of measures taken on the basis of those rules that it is necessary tobring the rule on the primacy of Community law into operation. They maintainthat that does not apply in a situation such as that in the main proceedings, where,first, only the national authority is seised of the matter, and, secondly, even adecision favourable to Mediaprint in the main proceedings, based on Article 35 ofthe Kartellgesetz, would not prevent the Commission from applying Article 86 ofthe Treaty.

14.

    Mediaprint and the Commission conclude that the interpretation of Community lawrequested by the national court bears no relation to the actual facts of the case or

to the subject-matter of the main action, so that there is no need to reply to thequestions.

15.

    They add that the hypothetical nature of the questions referred is furtherreinforced by the consideration that, in this case, one of the requirements forapplying Article 86 of the Treaty, the function of which, moreover, is to define therespective areas of application of national and Community competition law, isunlikely to have been met, namely the requirement that trade between MemberStates be significantly affected. The Commission argues in that respect that thefacts of the main proceedings are confined to Austria, inasmuch as an Austriandaily newspaper wishes to be included in a home-delivery scheme which is operatedby an Austrian undertaking and is in any event geographically limited to Austria. Mediaprint points out that Oscar Brunner distributes fewer than 700 copies of DerStandard abroad daily, amounting to less than 0.8% of the newspaper's totalcirculation.

16.

    This court finds that, in accordance with established case-law, it is for the nationalcourts alone which are seised of the case and are responsible for the judgment tobe delivered to determine, in view of the special features of each case, both theneed for a preliminary ruling in order to enable them to give their judgment andthe relevance of the questions which they put to the Court. Consequently, wherethe questions put by national courts concern the interpretation of a provision ofCommunity law, the Court is, in principle, bound to give a ruling (Joined CasesC-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraphs 34and 35; Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Köln [1990] ECRI-4003, paragraphs 19 and 20).

17.

    It should also be noted that Article 177 of the Treaty, which is based on a clearseparation of functions between national courts and this Court, does not allow thisCourt to review the reasons for which a reference is made. Consequently, arequest from a national court may be rejected only if it is quite obvious that theinterpretation of Community law or review of the validity of a rule of Communitylaw sought by that court bears no relation to the actual facts of the case or to thesubject-matter of the main action (Case C-446/93 SEIM v Subdirector-Geral dasAlfândegas [1996] ECR I-73, paragraph 28).

18.

    In the main proceedings, as stated in paragraph 10 of this judgment, the nationalcourt expressly stated as the reason why it needed to make a preliminary referenceits concern to ensure compliance with the rule of the primacy of Community lawand, consequently, not to tolerate a situation in national law contrary to Communitylaw.

19.

    It is clear from the judgment in Walt Wilhelm, cited above, that it is not impossiblefor the same situation to fall within the scope of both Community and nationalcompetition law, even if they consider restrictive practices from different points ofview (see also Joined Cases 253/78 and 1/79 to 3/79 Procureur de la République v

Giry and Guerlain [1980] ECR 2327, paragraph 15; Case C-67/91 Dirección Generalde Defensa de la Competencia v Asociación Española de Banca Privada [1992] ECRI-4785, paragraph 11).

20.

    In those circumstances, the fact that a national court is dealing with a restrictivepractices dispute by applying national competition law should not prevent it frommaking reference to the Court on the interpretation of Community law on thematter, and in particular on the interpretation of Article 86 of the Treaty inrelation to that same situation, when it considers that a conflict betweenCommunity law and national law is capable of arising.

21.

    Finally, the circumstances relied upon by Mediaprint and the Commission indisputing whether trade between Member States was genuinely affected concernthe applicability of Article 86 of the Treaty to the factual situation forming thesubject-matter of the main proceedings. They therefore fall within the scope of theassessment by the national court and are irrelevant for the purposes of verifyingwhether the questions referred to the Court are admissible.

22.

    It follows from the foregoing considerations that it is necessary to reply to thequestions referred by the national court.

The first question

23.

    In its first question, the national court effectively asks whether the refusal by apress undertaking which holds a very large share of the daily newspaper market ina Member State and operates the only nationwide newspaper home-deliveryscheme in that Member State to allow the publisher of a rival newspaper, whichby reason of its small circulation is unable either alone or in cooperation with otherpublishers to set up and operate its own home-delivery scheme in economicallyreasonable conditions, to have access to that scheme for appropriate remunerationconstitutes the abuse of a dominant position within the meaning of Article 86 of theTreaty.

24.

    In that respect, Oscar Bronner argues that the supply of services consisting in thehome delivery of daily newspapers constitutes a separate market, inasmuch as thatservice is normally offered and requested separately from other services. OscarBronner also argues that, under the doctrine of 'essential facilities‘ as establishedby the Court of Justice in Joined Cases C-241/91 P and C-242/91 P RTE and ITPv Commission [1995] ECR I-743 (the 'Magill judgment‘), the service performed byplacing a facility at the disposal of others and that supplied by using that facility inprinciple constitute separate markets. It therefore maintains that, as the owner ofsuch an 'essential facility‘, in this case the only economically viable home-deliveryscheme existing in Austria on a national scale, Mediaprint is obliged to allow accessto the scheme by competing products on market conditions and at market prices.

25.

    Oscar Bronner also refers in this context to Joined Cases 6/73 and 7/73 CommercialSolvents v Commission [1974] ECR 223, at paragraph 25, which, in its submission,demonstrates that the refusal by an undertaking in a dominant position to supplyundertakings immediately downstream is lawful only if objectively justified. Referring to the judgment of the Court of Justice in Case 311/84 CBEM v CLT andIPB [1985] ECR 3261, in which it held that an abuse within the meaning of Article86 is committed where, without any objective necessity, an undertaking holding adominant position on a particular market reserves to itself or to an undertakingbelonging to the same group an ancillary activity which might be carried out byanother undertaking as part of its activities on a neighbouring but separate market,with the possibility of eliminating all competition from such undertaking, OscarBronner maintains that that consideration applies equally to the case of anundertaking holding a dominant position in the market for a given supply ofservices, which is indispensable for the activity of another undertaking in a differentmarket.

26.

    Mediaprint objects that, in principle, undertakings in a dominant position are alsoentitled to the freedom to arrange their own affairs, in that they are normallyentitled to decide freely to whom they wish to offer their services and, in particular,to whom they wish to allow access to their own facilities. Thus, as the Courtexpressly held in Magill, an obligation to contract, to which an undertaking holdinga dominant position would be subject, can be based on Article 86 of the Treatyonly in exceptional circumstances.

27.

    In Mediaprint's submission, the judgments in Commercial Solvents v Commissionand CBEM, cited above, show that such exceptional circumstances exist only if thedominant undertaking's refusal to supply is likely to eliminate all competition in adownstream market, which is not the case in the main proceedings, where, inparallel with home delivery, other distribution systems enable Oscar Bronner to sellits daily newspapers in Austria.

28.

    Mediaprint adds that, even if such exceptional circumstances did exist, a dominantundertaking's refusal to contract is not abusive if it is objectively justified. Thatwould be the case in the main proceedings if the inclusion of Der Standard werelikely to compromise the functioning of Mediaprint's home-delivery scheme or wereto be shown to be impossible for reasons relating to the capacity of that scheme.

29.

    The Commission points out that it is for the national court to assess whether theconditions for applying Article 86 of the Treaty are met, and maintains that it isonly if a separate market in home-delivery schemes exists and Mediaprint holds adominant position in that market that it needs to be examined whether its refusalto include Oscar Bronner in that network constitutes an abuse.

30.

    Emphasising that in this case the order for reference shows that a third undertakingwas admitted to Mediaprint's home-delivery scheme, the Commission states thatsuch an abuse, within the meaning of Article 86 of the Treaty, might consist, in the

wording of subparagraph (c) of that provision, in applying dissimilar conditions toequivalent transactions with other trading parties. The Commission does not,however, consider that to be the case in the main proceedings, since the servicesought by Oscar Bronner was not made subject to conditions other than thoseapplicable to other trading parties, but was not offered at all if other services werenot entrusted to Mediaprint at the same time.

31.

    In order to assist the national court it should be recalled at the outset that Article86 of the Treaty prohibits the abuse of a dominant position within the commonmarket or a substantial part of it in so far as it may affect trade between MemberStates.

32.

    In examining whether an undertaking holds a dominant position within the meaningof Article 86 of the Treaty, it is of fundamental importance, as the Court hasemphasised many times, to define the market in question and to define thesubstantial part of the common market in which the undertaking may be able toengage in abuses which hinder effective competition (Case C-242/95 GT-Link vDSB [1997] ECR I-4449, paragraph 36).

33.

    It is settled case-law that, for the purposes of applying Article 86 of the Treaty, themarket for the product or service in question comprises all the products or serviceswhich in view of their characteristics are particularly suited to satisfy constant needsand are only to a limited extent interchangeable with other products or services(Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, paragraph 25; CaseC-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 51).

34.

    As regards the definition of the market at issue in the main proceedings, it istherefore for the national court to determine, inter alia, whether home-deliveryschemes constitute a separate market, or whether other methods of distributingdaily newspapers, such as sale in shops or at kiosks or delivery by post, aresufficiently interchangeable with them to have to be taken into account also. Indeciding whether there is a dominant position the court must also take account, asthe Commission has emphasised, of the possible existence of regional home-deliveryschemes.

35.

    If that examination leads the national court to conclude that a separate market inhome-delivery schemes does exist, and that there is an insufficient degree ofinterchangeability between Mediaprint's nationwide scheme and other, regional,schemes, it must hold that Mediaprint, which according to the information in theorder for reference operates the only nationwide home-delivery service in Austria,is de facto in a monopoly situation in the market thus defined, and thus holds adominant position in it.

36.

    In that event, the national court would also have to find that Mediaprint holds adominant position in a substantial part of the common market, since the case-law

indicates that the territory of a Member State over which a dominant positionextends is capable of constituting a substantial part of the common market (see, tothat effect, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 28;Case C-323/93 Centre d'Insémination de la Crespelle [1994] ECR I-5077, paragraph17).

37.

    Finally, it would need to be determined whether the refusal by the owner of theonly nationwide home-delivery scheme in the territory of a Member State, whichuses that scheme to distribute its own daily newspapers, to allow the publisher ofa rival daily newspaper access to it constitutes an abuse of a dominant positionwithin the meaning of Article 86 of the Treaty, on the ground that such refusaldeprives that competitor of a means of distribution judged essential for the sale ofits newspaper.

38.

    Although in Commercial Solvents v Commission and CBEM, cited above, the Courtof Justice held the refusal by an undertaking holding a dominant position in a givenmarket to supply an undertaking with which it was in competition in a neighbouringmarket with raw materials (Commercial Solvents v Commission, paragraph 25) andservices (CBEM, paragraph 26) respectively, which were indispensable to carryingon the rival's business, to constitute an abuse, it should be noted, first, that theCourt did so to the extent that the conduct in question was likely to eliminate allcompetition on the part of that undertaking.

39.

    Secondly, in Magill, at paragraphs 49 and 50, the Court held that refusal by theowner of an intellectual property right to grant a licence, even if it is the act of anundertaking holding a dominant position, cannot in itself constitute abuse of adominant position, but that the exercise of an exclusive right by the proprietor may,in exceptional circumstances, involve an abuse.

40.

    In Magill, the Court found such exceptional circumstances in the fact that therefusal in question concerned a product (information on the weekly schedules ofcertain television channels) the supply of which was indispensable for carrying onthe business in question (the publishing of a general television guide), in that,without that information, the person wishing to produce such a guide would findit impossible to publish it and offer it for sale (paragraph 53), the fact that suchrefusal prevented the appearance of a new product for which there was a potentialconsumer demand (paragraph 54), the fact that it was not justified by objectiveconsiderations (paragraph 55), and that it was likely to exclude all competition inthe secondary market of television guides (paragraph 56).

41.

    Therefore, even if that case-law on the exercise of an intellectual property rightwere applicable to the exercise of any property right whatever, it would still benecessary, for the Magill judgment to be effectively relied upon in order to pleadthe existence of an abuse within the meaning of Article 86 of the Treaty in asituation such as that which forms the subject-matter of the first question, not onlythat the refusal of the service comprised in home delivery be likely to eliminate all

competition in the daily newspaper market on the part of the person requesting theservice and that such refusal be incapable of being objectively justified, but alsothat the service in itself be indispensable to carrying on that person's business,inasmuch as there is no actual or potential substitute in existence for that home-delivery scheme.

42.

    That is certainly not the case even if, as in the case which is the subject of the mainproceedings, there is only one nationwide home-delivery scheme in the territory ofa Member State and, moreover, the owner of that scheme holds a dominantposition in the market for services constituted by that scheme or of which it formspart.

43.

    In the first place, it is undisputed that other methods of distributing dailynewspapers, such as by post and through sale in shops and at kiosks, even thoughthey may be less advantageous for the distribution of certain newspapers, exist andare used by the publishers of those daily newspapers.

44.

    Moreover, it does not appear that there are any technical, legal or even economicobstacles capable of making it impossible, or even unreasonably difficult, for anyother publisher of daily newspapers to establish, alone or in cooperation with otherpublishers, its own nationwide home-delivery scheme and use it to distribute its owndaily newspapers.

45.

    It should be emphasised in that respect that, in order to demonstrate that thecreation of such a system is not a realistic potential alternative and that access tothe existing system is therefore indispensable, it is not enough to argue that it is noteconomically viable by reason of the small circulation of the daily newspaper ornewspapers to be distributed.

46.

    For such access to be capable of being regarded as indispensable, it would benecessary at the very least to establish, as the Advocate General has pointed outat point 68 of his Opinion, that it is not economically viable to create a secondhome-delivery scheme for the distribution of daily newspapers with a circulationcomparable to that of the daily newspapers distributed by the existing scheme.

47.

    In the light of the foregoing considerations, the answer to the first question mustbe that the refusal by a press undertaking which holds a very large share of thedaily newspaper market in a Member State and operates the only nationwidenewspaper home-delivery scheme in that Member State to allow the publisher ofa rival newspaper, which by reason of its small circulation is unable either alone orin cooperation with other publishers to set up and operate its own home-deliveryscheme in economically reasonable conditions, to have access to that scheme forappropriate remuneration does not constitute abuse of a dominant position withinthe meaning of Article 86 of the Treaty.

The second question

48.

    In its second question, the national court asks whether the refusal by thatundertaking, in the circumstances mentioned in the first question, to allow thepublisher of a rival daily newspaper to have access to its home-delivery schemewhere the latter does not at the same time entrust to it the carrying out of otherservices, such as sale in kiosks and printing, constitutes an abuse of a dominantposition within the meaning of Article 86 of the Treaty.

49.

    Given the reply to the first question, there is no need to answer the second.

Costs

50.

    The costs incurred by the Commission, which has submitted observations to theCourt, are not recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the proceedings pending before the national court, thedecision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Oberlandesgericht Wien by orderof 1 July 1996, hereby rules:

The refusal by a press undertaking which holds a very large share of the dailynewspaper market in a Member State and operates the only nationwide newspaperhome-delivery scheme in that Member State to allow the publisher of a rivalnewspaper, which by reason of its small circulation is unable either alone or incooperation with other publishers to set up and operate its own home-deliveryscheme in economically reasonable conditions, to have access to that scheme forappropriate remuneration does not constitute the abuse of a dominant positionwithin the meaning of Article 86 of the EC Treaty.

Kapteyn Murray Ragnemalm Schintgen Ioannou

Delivered in open court in Luxembourg on 26 November 1998.

R. Grass

P.J.G. Kapteyn

Registrar

President of the Sixth Chamber

1: Language of the case: German.