By the decision of 24 January 201134, the European Commission rejected a complaint of Si.mobil concerning the abuse of dominant position by Mobitel on the Slovenian mobile telecom market. Si.mobil claimed on the one hand, that Mobitel abused its dominant position on the retail mobile communication market by using a strategy of margin-squeeze and predatory pricing, and on the other hand, that Mobitel abused its dominant position on the wholesale market for mobile access and call origination by foreclosing access to this market through increasing the pool of so-called ‘on net calls’ by charging both artificially low prices and discriminatory pricing. Both claims were rejected by the Commission because (i) the Slovenian competition authority (‘UVK’) is investigating the claim of abuse of dominance on the retail market, and (ii) the claim related to the abuse on the wholesale market does not have a sufficient degree of European Union interest.
Concerning the claims regarding abuse of dominant position by Mobitel on the retail market due to marginsqueeze and predatory pricing, the Commission reminded that according to Article 13 of Regulation 1/2003, the Commission may reject a complaint on the ground that a national competition authority of a members state is dealing or has dealt with the case. The Commission observed that the UVK is dealing with a case concerning the same abuse of dominance by the same company and for the same period. Furthermore, the Commission ascertained that the UVK is actively dealing with this case and that there are no indications that the UVK would face institutional shortcomings as alleged by Si.mobil. The Commission rejected this part of the complaint on those grounds.
Concerning the claims regarding abuse of dominance on the wholesale market, the Commission noted first of all that, according to Si.mobil, this abuse is closely interlinked with the abuse of Mobitel on the retail market. Therefore, UVK’s conducting an investigation into the abuse on the retail market should be taken into account when assessing the need for the Commission to investigate the claims regarding the abuse of dominance on the wholesale market. Furthermore, the Commission repeated that it is not obliged to conduct an investigation into each complaint it receives and that in assessing the EU’s interest in continuing an investigation, the Commission may balance (i) the significance of the alleged infringement in view of the functioning of the internal market, (ii) the probability of establishing an infringement, and (iii) the scope of the investigation that would be required. Based on these criteria and the fact that the UVK has already conducted an investigation into the abuse on the retail market, the Commission concluded that the complaint be rejected because the impact of the alleged conduct on the functioning of the internal market is limited and the likelihood of establishing an infringement of Article 102 TFEU is also limited.
In short, the Commission concluded that the impact of the abuse is likely to be limited to the territory of Slovenia and would also be limited should the UVK find an abuse on the retail market and remedy this abuse. In such case, there is thus no significant impact on the functioning of the internal market. Furthermore, as Si.mobil did not put forward any concrete evidence of the alleged abuses and the fact that proving the abuse in the present case would require a complex factual and economic analysis, the Commission concluded that it would be disproportionate to further investigate this case in light of its limited impact. Therefore, the Commission found that there is a lack of EU interest and rejected this part of the complaint