by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

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Keywords: Common Market, Abuse, Dominant Position, European Commission, Exemption.

Court: CJEU, General Court | Date: June 10th 1990 | Case: T-51/89 | Applicants: Tetra Pak Raussing S.A. vs European Commission

Summary: On 26th July 1988, European Commission declared that Tetra Pak Raussing S.A. was in breach of article 86 of the EEC Treaty because by purchasing LiquiPak, they would have access to LiquiPak’s exclusivity contract of patent. This exclusive licence relates to a new UHT milk-packaging process. On 26th June 1986, EloPak made a complaint to the European Commission contesting TetraPak act according to articles 85 and 86 of the EEC Treaty. European Commission concluded that TetraPak infringed article 86 of the EEC Treaty by abusing its dominant position. TetraPak contested the decision and appealed to First Instance Court based on the argument that European Commission couldn’t disallow the deal based on article 86 when this deal is an exemption to n.3 of article 85 of the EEC Treaty. This argument is separated in three sub-categories:

Firstly, the analysis of articles 85 and 86 of the EEC Treaty. For this purpose, CJEU remembered a judgement called “Continental can” to argue that both articles cannot be interpreted in different directions since these articles have the same purpose.

Secondly, the principle of legal certainty. TetraPack sustained that once the behaviour is immune to the rules of n.3 of article 85 of the EEC Treaty, it could not be forbidden for article 86 of the Treaty. CJEU considered that the enforcement of article 86 of the Treaty in situations which it is possible to apply an exemption for n.3 of article 85 of the Treaty, it doesn’t disallow European Commission to act in this direction if article 86 was breached by an undertaking.

At last, the principle of uniform application of Community Law. TetraPak said that this prohibition could prejudice the uniform application of Community law. CJEU didn’t sustain this argument because article 86 has direct effect to the particulars, and the states should protect this right.

The decision can be accessed here and the opinion of the AG here.