Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The tribunal de grande instance, Strasbourg, wishes to ascertain whether the fact that a telecommunications installer which has a leading share of a regional market in a Member State imposes on its customers standard-form contracts containing certain clauses which are oppressive constitutes an abuse of a dominant position within the meaning of Article 86 of the EEC Treaty.

2. I should point out in the first place that in France the market in telecommunications, from the production to the supply of installations and equipment in general, is subject to a State monopoly. In particular, Article L 33 of the Post and Telecommunications Code provides that no telecommunications installation may be established or used for the transmission of communications except by the Minister for Posts and Telecommunications or with his authorization.

3. Let me now turn to the main aspects of the dispute pending before the national court. The reference for a ruling does not throw any light on Alsatel's legal and economic ties. The Commission, for its part, merely states that Alsatel, along with 15 other undertakings, forms part of a consortium called Intertel, whose object is to guarantee its own members the best business conditions for the procurement of equipment.

4. In their written observations, Novasam and the Commission ask the Court to consider the dispute not only from the point of view of Article 86 but also in the light of the prohibition laid down by Article 85 of the Treaty. In that regard the Commission admits that in fact it can detect... only a degree of parallel conduct between, in particular, installers belonging to the same groups (at p. 22). However, on the basis of the information available to it (but not to the national court), the Commission assumes that the national court could treat the situation described in paragraph 2 as a concerted practice having as its purpose to fix ... trading conditions [and] thereby falling within the category referred to in Article 85 (1) (a). Accordingly, any contractual clause in conformity with that practice would, pursuant to Article 85 (2), be automatically void (at p. 24).

5. Let me now consider the question submitted within the limits of the wording used in the order for reference. Article 86, as we know, prohibits abusive practices connected with the exploitation by one or more undertakings of a dominant position within the common market or in a substantial part of it. That prohibition, however, applies only in so far as those practices may have an appreciable effect on trade between Member States. In order to apply that provision correctly, therefore, it is necessary: (a) to define the relevant market and its territorial extent; (b) to ascertain whether one or more undertakings occupy a dominant position on that market and engage in abusive practices; (c) to determine whether, as a result of such conduct, intra-Community trade is affected to an appreciable extent.

6. I could stop at this point. However, the Commission states that this case must be examined from the broader perspective of a dominant position occupied by undertakings collectively and in that regard points out that, viewed as a whole, the market in telephone equipment rentals is divided between two large categories of traders: the postal and telecommunications authorities, who hold one-third of the market, and authorized installers, who hold the remaining two-thirds. Moreover, the Court has consistently held that a dominant position can also exist where several undertakings which belong to the same group or conclude an agreement have between them the power to hinder effective competition. As we have seen, the Commission considers—without being certain —that a degree of parallel conduct exists between the companies belonging to the Intertel group.

7. On the basis of the foregoing-considerations I suggest that the Court answer the question submitted by the tribunal de grande instance, Strasbourg by judgments of 17 September and 10 December 1986 in the proceedings pending before it between Alsatel and Novasam as follows:

1 Translated from the Italian.