Potential competition
Evidence of a subjective nature, such as the mere wish or desire of the undertaking which is not present on the market concerned to enter that market or even its perception of the undertaking which is already active on that market, cannot constitute independent, decisive or indispensable evidence demonstrating potential competition, but may support objective evidence to strengthen the demonstration that there are real and concrete possibilities of entering the market for an undertaking not present on it.
CJEU, Case C-331/21 EDP, Judgment of 26 October 2023, LawLex202300012732JBJ
Vertical restraints
A commercial association agreement concluded between two undertakings active on different product markets which are not upstream or downstream of each other, does not fall within the category of a ‘vertical agreement’ and an ‘agency agreement’ where that agreement consists of promoting the development of sales of the products of those two undertakings through a promotion and cross-discount mechanism, where each of those undertakings bears a part of the costs relating to the implementation of that association.
CJEU, Case C-331/21 EDP, Judgment of 26 October 2023, LawLex202300012732JBJ
Abuse of dominant position
In order to characterize an abusive refusal to supply, the Commission cannot rely on the effects that the practice might produce or might have produced if certain specific circumstances – which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise – had arisen or did arise.
GC, Case T-136/19 Bulgarian Energy Holding EAD, Judgment of 25 October 2023
Access to the file
The refusal to grant access to documents which would have enabled the undertakings in question to establish that part of the practices were not attributable to them, to reduce the duration of the infringement and hence the level of the fine, or to demonstrate that the conditions of competition on the downstream market were not sound, and consequently to better defend themselves, justifies the annulment of the judgment.
GC, Case T-136/19 Bulgarian Energy Holding EAD, Judgment of 25 October 2023
Franchise
Even if the contract provides for a termination clause subject to prior formal notice, the franchisee may still notify the franchisor of immediate termination at its peril, provided that it can demonstrate not mere non-performance, but particularly egregious conduct seriously jeopardizing its interests.
CA Douai, 12 October 2023, LawLex202300012432JBJ
