Norway’s Supreme Court has ruled in a matter concerning a commercial ski instruction school’s access to a ski facility and the ski schools’ instructors rights to use the ski lifts in the facility.
The matter has been pending in the Norwegian courts since autumn 2011. Kristiansand City Court gave a judgment in favor of the ski lift facility, while the Appellate Court found that the ski lift facility had breached Section 11 of the Norwegian Competition Act, equivalent to Article 102 TFEU/Article 54 EEA.
Due to special Norwegian regulations on access to nature and uncultivated land, the Supreme Court considered that everyone, including commercial actors, as a main rule can access and use the ski slopes in a ski facility. However, the ski lifts are not covered by the same regulations. The question before the Supreme Court was whether a ski lift facility was abusing a dominant position by not letting a ski school’s instructors use a ski lift facility under the same conditions as the facility’s standard consumers.
Unlike the Appellate Court, the Supreme Court took a broad market definition approach and found that the relevant market could not be limited to merely the ski facility in question.
In January 2014, the Supreme Court ultimately held that there was no abuse, because the ski lift facility had not refused to negotiate fair terms with the ski school. There was no obligation for the ski lift facility to provide the commercial ski school with the same terms as its consumer terms. The ski lift facility could differentiate between consumer groups as long as such differentiation was carried out with business-like objectivity.