CASE COMMENTS: EUROPEAN AND INTERNATIONAL LAW – SPAIN – COLLECTIVE DOMINANT POSITION – MARGIN SQUEEZE – TESTS

Spain: The Spanish Supreme Court confirms the appropriateness of a “crossed” test, complementary to the “as efficient competitor” test, to determine the foreclosure effects of an alleged margin squeeze in cases of collective dominance (BT / CNMC, Telefónica, Vodafone, Orange)

By Judgment of 9 October 2018, issued in appeal n° 4509/2017, the Supreme Court has confirmed the Judgment of 27 May 2017 of the Audiencia Nacional (appeal nº 263/16) which decided on the appeal by British Telecommunications, PLC and BT España Compañía De Servicios Globales De Telecomunicaciones, S.A.U. (both “BT”) against the decision of the Council of the Spanish Competition Authority (the “CNMC”) of 6 March 2014 in Case S/0391/11, Mobile calls, stating that an infringement of Articles 2 of the Spanish Competition Act (the “LDC”) and 102 TFEU by Telefónica Móviles de España, S.A.U. (“Telefónica”), Vodafone España, S.A.U. (“Vodafone”) and Orange Espagne, S.A. (“Orange”) had not been established. On 16 December 2011, BT filed a complaint against Telefónica and Vodafone, alleging they had infringed

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Rafael Allendesalazar, Paloma Martínez-Lage Sobredo, Spain: The Spanish Supreme Court confirms the appropriateness of a “crossed” test, complementary to the “as efficient competitor” test, to determine the foreclosure effects of an alleged margin squeeze in cases of collective dominance (BT / CNMC, Telefónica, Vodafone, Orange), 9 October 2018, Concurrences Review N° 1-2019, Art. N° 89429, pp. 212-214

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