The Danish Competition Appeals Tribunal agrees: Teller abused its dominant position
In a recent decision, the Competition Appeals Tribunal has established that it amounted to abuse of dominance when Teller used foreclosing discount schemes and clauses. Thus, the Tribunal upholds the Competition Council’s decision from August 2018.
The Competition Appeals Tribunal’s decision of 23 September 2019
By assistant attorney Adrian Kielberg
Background: The Competition Council’s initial decision
In August 2018, the Competition Council found that Teller - at that time a subsidiary of Nets, but now part of Nets - from 2012 to 2016 had offered “exclusivity discounts and/or exclusivity clauses capable of foreclosing the market for redemption of payment cards and mobile payment solutions in physical stores in Denmark”. In the Council’s opinion, the discounts and the exclusivity clauses had the effect of creating loyalty, which could prevent competitors from attracting the relevant customers.
Read our news article on the Council’s decision
Affirmation by the Tribunal
In its decision, the Tribunal agrees that Teller abused its dominant position and breached section 11(1) of the Danish Competition Act and Article 102 TFEU by offering exclusivity clauses in its contracts in the period 2012-2016.
The Tribunal concludes that the Competition Council was right in confining itself to establish that the exclusivity clauses were capable of having a foreclosing effect, and that a more impact-based approach was therefore not relevant - a so-called AEC test ("As Efficient Competitor"). Finally, the Tribunal finds that the Competition Council’s decision did not suffer from any case administration shortcomings.
The Tribunal’s decision will be published later when the confidentiality issue has been clarified.
Read the Competition and Consumer Authority’s press release on the Tribunal’s decision