Confirmation Of Annulment Of EPT Fine For Abuse Of Dominance
In a judgment of 1 June 2017, the Administrative Court confirmed the annulment by the Administrative Tribunal of Decision 2014-FO-07 of the Competition Council ("Council"). In that decision, the Council had imposed a fine of 2.52 million euros on "Entreprise des Postes et Télécommunications" ("EPT"), known as "POST Luxembourg", for abuse of its dominant position in fixed telephony and internet access services through the use of bundled discounts for fixed telephony, internet access and mobile telephony services in 2006 and 2007. This decision, adopted in November 2014, closed an examination procedure triggered by a competitor complaint in 2006.
Upon appeal, the Administrative Tribunal quashed Decision 2014-FO-07. It held that the contested decision was in manifest breach of the reasonable time requirement considering, in particular, the fact that the statement of objections was issued only in January 2014. Further, it considered that EPT's right of access to the file was violated, notably because no access was granted to certain statistics in support of the Council's market definition analysis. It also found one information request addressed to EPT to have presented material flaws implying its nullity. On substance, the Administrative Tribunal considered that the Council's market definition analysis was subject to criticism and that it applied a method of analysis of the contested rebate scheme which did not respect the European Commission's guidance in this area. The Administrative Tribunal concluded that, independently of the question of the consequences to be attached to these flaws individually, taken together, they were cause for annulment. It also concluded that a renewed analysis of the merits of the case would violate the reasonable time requirement and the principle of legal certainty.
In its appeal before the Administrative Court, the Luxembourg State contested these findings and argued that the Administrative Tribunal erred in law since it limited itself to considering that, taken...
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