On 20 August 2012, the Dutch Competition Authority ("NMa") issued its decision ("Decision") in an ongoing dispute between property developer Chipshol and the Dutch airport Schiphol. Chipshol claimed that Schiphol had abused its dominant position by influencing several governmental decisions and procedures. Chipshol alleged that it was prevented from developing its land in the area of the airport as a result of the abuse. The NMa found no indications that Schiphol's conduct was effectively aimed at excluding Chipshol as a competitor. Therefore, it rejected Chipshol's complaint.
In its Decision, the NMa first of all acknowledged that it had been impossible for Chipshol to develop its property in the Schiphol airport area due to various governmental decisions. However, governmental decisions fall outside the scope of the prohibition on abuse of a dominant position. The NMa's investigation was therefore limited to the question whether Schiphol abused its alleged dominant position by unduly influencing the contents of the relevant governmental decisions.
The NMa assessed Chipshol's complaint on the basis of the criteria that the General Court had laid down in its judgment in ITT/Promedia of 17 July 1998 (Case T-111/96). In this judgment the General Court considered that vexatious litigation could qualify as an abuse of a dominant position if the action (i) could not reasonably be considered as an attempt to establish the rights of the undertaking concerned and could therefore only serve to harass the opposite party and (ii) was conceived in the framework of a plan whose goal is to eliminate competition.
Although according to the NMa Schiphol had influenced the governmental decisions, it did so to pursue and defend its interests regarding aviation safety. Therefore, according to the NMa, Schiphol's conduct did not fulfill the conditions of ITT/Promedia. Since Schiphol's conduct could not qualify as an abuse, the question whether Schiphol has a dominant position in the relevant market could be left unanswered.