On February 17, 2011, the European Court of Justice (ECJ) issued its judgment in the TeliaSonera case. TeliaSonera Sverige AB is the incumbent operator in the Swedish market for fixed-line telephony. The Swedish courts referred the case to the ECJ for guidance on the circumstances in which a margin squeeze may amount to abuse of a dominant position.
TeliaSonera argued that a dominant undertaking should be free to fix its terms of trade, unless its conduct meets the test established in the case of Bronner. Under Bronner, the terms of trade must be so disadvantageous to those trading with the dominant undertaking that they entail a refusal to supply.
The ECJ rejected TeliaSonera's argument. It held that selling goods on conditions which are disadvantageous may in itself be a form of abuse distinct from refusal to supply, and in such case the Bronner criteria do not need to be satisfied. The ECJ justified its position on grounds of policy, arguing that to apply Bronner in the manner advocated by TeliaSonera would unduly reduce the effectiveness of Article 102 TFEU (EU law governing abuse of dominant position).
The Court also acknowledged in its judgment the concept of super-dominance. It noted, however, that the existence of a position of super-dominance is irrelevant to establishing the infringement, since a dominant position alone is sufficient for that purpose. The degree of dominance held by the undertaking, and therefore whether it is super-dominant, may be relevant when assessing the effects of the undertaking's conduct.