On 23 May 2013, the Supreme Court of the Slovak Republic
(“Supreme Court”) confirmed the correctness of the decision of the Antimonopoly
Office of the Slovak Republic (“the AMO” or “the Office”) in the matter of
infringement of competition rules by ENVI-PAK, a. s.. The Supreme Court changed
the verdict of the Regional Court Bratislava (“Regional Court”) so thus it
dismissed the complaint of ENVI-PAK against AMO. The Supreme Court thus upheld
the Office´s decisions, by which a fine of EUR 18 394 was imposed on
ENVI-PAK, a. s. (“ENVI-PAK”) for having abused its dominant position on the
relevant market of granting approval to use the trademark “Green Dot” in the territory
of the Slovak Republic. The assessed conduct represented violation of Art. 8 of
the Act on Protection of Competition valid in the Slovak Republic as well as
Article 82 of EC Treaty (now Article 102 of the Treaty on the Functioning of
the European Union).
ENVI-PAK was in
assessed period a sole undertaking entitled to provide “Green Dot” trade mark
sublicenses in Slovakia. On that basis ENVI-PAK was entitled to provide
individual licenses (sublicenses) to third parties, i. e. producers,
distributors of packaging and packed goods, suppliers and importers for using
the trademark “Green Dot” in the Slovak Republic and for the right to introduce
on Slovak market the goods in packaging marked with “Green Dot” (licensed
clients). Each importer, respectively another obliged person introducing in
Slovak market packaging being already marked with “Green Dot”, had to make a
contract with ENVI-PAK. There were no other alternative for obliged persons to
obtain trademark “Green Dot” than a contract with ENVI-PAK.
ENVI-PAK acted
at the same time on the market of providing services of authorized
organizations, i. e. it provided packaging waste collection, recovery and waste
recycling for obliged persons (service clients), where it was exposed to
competition by another authorized organizations. Impacts of the abuse of
dominant position by the company ENVI-PAK appeared in this market.
ENVI-PAK set
the system of payments for Green Dot in such way, that its service clients,
that are companies having used the packaging waste collection, recovery and
recycling services of ENVI-PAK could use the Green Dot gratis, while companies
using the services of its competitors, which were interested only in the “Green
Dot” sublicense, had to pay a separate license fee. Final price paid by an undertaking
applying only for the “Green Dot” sublicense was always higher than the price
that the undertaking would have paid if it had been a service client of
ENVI-PAK. For obliged person using Green Dot was not economically reasonable to
be or to become service client of another competitive authorized organization.
ENVI-PAK abused its dominant position in the market of granting approval to use
the trademark Green Dot via individual licenses in such way that in fact it
indirectly forced obliged persons using Green Dot to use also its services in
the market of packaging waste collection, recovery and waste recycling, what
led to limiting of expansion of competitors in the market.
As the conduct
was also an infringement of European law, European Commission used the chance
to express its opinion on the case. In its statement sent to the Supreme Court
it expressed oneself to the parallel application of national and European
competition law prohibiting the abusing of dominant position, as well as to
possibility to impose a fine for the infringement of general prohibition of the
abuse of dominance. The Commission´s statement is consistent with the
argumentation stated in the Office´s appeal to the Supreme Court.
The decision is final and cannot be appealed.
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