Previous business/academic article Next business/academic article
Business Articles Awards > Unilateral Conduct

The Application of Article 102 TFEU by the European Commission and the European Courts

Romano Subiotto et al., Journal of European Competition Law & Practice, 2017, Vol. 8, No. 4

See Romano F. Subiotto's resume See David R. Little's resume See Romi Lepetska's resume

Click here to read the full article online

The Commission’s most high-profile Article 102 investigations of 2015—Gazprom, Google, and Qualcomm—remained open at the end of 2016. Each of these companies received Statements of Objections (‘SO’) shortly after Commissioner Vestager took office.1 The Gazprom and Qualcomm investigations appear close to resolution. Conversely, the Commission’s Google investigations seem no closer to a final outcome. In 2016, the Commission issued two SOs addressed to Google: one relating to Google’s advertising and intermediation service, AdSense, and the other relating to the Android operating system. The Commission also issued a Supplementary SO in relation to the Google ‘Shopping’ service. An umber of other investigations that were opened in 2015 or in which an SO was issued are ongoing, with no major developments announced in 2016.

Despite this relatively full case docket, the Commission opened two new Article 102 investigations, issued an SO addressed to the International Skating Union, and conducted unannounced inspections in the Romanian gas market. The Commission adopted a settlement decision in its investigation into whether the Austrian waste management company, ARA, had unlawfully obstructed rivals’ access to the country’s household packaging waste management market between 2008 and 2012. It is the first time since the introduction of Regulation 1/2003 that the Commission has used the settlement mechanism in an Article 102 case. The Commission also allowed for early termination of commitments imposed in Deutsche Bahn I, Deutsche Bahn II,and E.On Gas.

The General Court (‘GC’) issued judgements in two Article 102-related cases: Orange Polska8 (the exist-ence of a variety of exclusionary conduct was not con-tested) and Morningstar (appeal against the imposed commitments in Reuters Instrument Codes).9 The Court of Justice (‘ECJ’) handed down a judgement concerning the interplay between Articles 102 and 106 in Slovenská Pošta.10 In 2016, Advocate General (‘AG’) Wahl also issued a noteworthy opinion in Intel,rejecting the ‘per se’ treatment of exclusivity rebates, and proposing to set aside the judgement and refer the case back to the GC.

Download our brochure