Opinion of Mr Advocate General Cruz Vilaça delivered on 11 February 1988

1 Translated from the Portuguese.

2 Judgment of 14 February 1980 in Case 53/79 ONPTS v Damiani [1980] ECR 273, paragraph 5 of the decision. See also the judgment of 26 September 1985 in Case 166/84 Thomasdünger v Oherfinanzdirektion [1985] ECR 3001, at p. 3009, paragraph 11 of the decision.

3 Judgment of 12 November 1969 in Case 29/69 Stauder v Ulm [1969] ECR 419; judgment of 8 June 1971 in Case 78/70 Deutsche Grammophon v Metro [1971] ECR 487.

4 Judgment of 17 February 1976 in Case 45/75 REWE v Hauplzollamt Landau [1976] ECR 181, at p. 197, paragraph 24 of the decision.

5 See, to the same effect, the Opinion of Advocate General Roemer in Case 82/71 Pubblico Ministero v SAIL [1972] ECR 119, at p. 141.

6 Judgment of 16 June 1987 in Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 11 of the decision.

7 Société coopérative d'amélioration de l'élevage du Béam v Mialocq [1983] ECR 2057, at p. 2072, paragraphs 6, 7 and 9 of the decision.

8 Judgment of 3 February 1976 in Case 59/75 Pubblico Ministero v Manghera [1976] ECR 91, at p. 100, paragraph 9 of the decision.

9 Judgment of 13 March 1979 in Case 91/78 Hansen v Hauptzollamt Flensburg [1979] ECR 935, at p. 956, paragraph 19 of the decision.

10 Manghera, supra, paragraph 12 of the decision.

11 Judgment of 7 June 1983 in Case 78/82 Commission v Italy [1983] ECR 1955, at p. 1967, paragraph 11 of the decision.

12 Judgment of 15 July 1964 in Case 6/64 Costa v Enel [1964] ECR 585.

13 Judgment of 30 April 1974 in Case 155/73 Sacchi [1974] ECR 427, paragraph 10 of the decision.

14 Judgment of 16 December 1970 in Case 13/70 Cinzano v Hauptzollamt Saarbrücken [1970] ECR 1089, at p. 1095, paragraph 5 of the decision.

15 Judgment of 6 July 1982 in Joined Cases 188 to 190/80 France, Italy and the United Kingdom v Commission [1982] ECR 2545, at p. 2579, paragraph 26 of the decision.

16 Idem, paragraph 12 of the decision.

17 Sachi, supra, at p. 429, paragraph M of the decision.

18 Idem, at p. 430.

19 Judgment of 21 March 1974 in Case 127/73 BRT v SABAM and NV Fonior [1974] ECR 313, at p. 318, paragraph 22 of the decision.

20 BRT, supra, at p. 318, paragraphs 20, 21 and 23 of the decision; judgment of 14 July 1981 in Case 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021, at p. 2030, paragraph 7 of the decision; judgment of 2 March 1983 in Case 7/82 GVL v Commission [1983] ECR 483, at p. 504, paragraphs 31 and 32 of the decision.

21 Judgment of 6 July 1982 France, Italy and the United Kingdom v Commission supra, paragraph 12 of the decision.

22 BRT, supra, paragraph 19 of the decision.

23 See the judgment of 3 October 1985 in Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, at p. 3275, paragraph 17 of the decision.

24 In that regard I would refer to the analogy with the judgment of 30 April 1986 in Joined Cases 209 and 213/84 Tarifas Aéreas [1986] ECR 1425, paragraphs 70 and 71 of the decision.

25 Judgment of 16 November 1979 in Case 13/77 INNO v ATAB [1977] ECR 2115, at p. 2145; judgment of 20 March 1985 in Case 41/83 Italy v Commission [1985] ECR 873.

26 Judgment of 14 February 1978 in Case 27/76 United Braná v Commission [1978] ECR 207, at p. 277, paragraph 65 of the decision; judgment of 13 February 1979 in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, at p. 520, paragraph 38 of the decision; judgment of 11 December 1980 in Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, at p. 3793, paragraph 26 of the decision; judgment of 9 November 1983 in Case 322/81 Michelin v Commission [1983] ECR 3461, at p. 3503, paragraph 30 of the decision; and judgment of 30 October 1985 in Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, at p. 3275, paragraph 16 of the decision.

27 Hoffmann-La Roche, supra, at p. 520, paragraph 39 of the decision.

28 United Brands, supra, at p. 278, paragraph 44 of the decision.

29 United Brands, supra, at p. 281, paragraph 66 of the decision; Hoffmann-La Roche, supra, at p. 520, paragraph 39 of the decision.

30 Hoffmann-La Roche, supra, paragraph 41 of the decision.

31 Hoffmann-La Roche, supra, paragraph 40 of the decision.

32 United Brands, supra, at p. 286, paragraphs 109 and 110 of the decision.

33 Hoffmann-La Roche, supra, at p. 524, paragraph 48 of the decision.

34 Judgment of 16 December 1975 in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie and Others v Commisiion [1975] ECR 1663, at p. 1977, paragraph 371 of the decision.

35 CBEM, supra, at p. 3273, paragraph 10 of the decision.

36 United Brands, supra, at p. 306, paragraph 250 of the decision.

37 See the judgment of 30 November 1975 in Case 26/75 General Motors v Commission [1975] ECR 1367, at p. 1378, paragraphs 8 and 9 of the decision, from which it follows that the existence of a dominant position may not be presumed where a legal monopoly is combined with provisions designed to determine or restrict the charge imposed by way of consideration for the service provided.

38 Judgment of 17 November 1987 in Joined Cases 142 and 156/84 British-American Tobacco Company v Commission [1987] ECR 4487, paragraph 37 of the decision.

39 Hoffmann-La Roche, supra, at p. 541, paragraph 91 of the decision.

40 Judgment of 2 March 1983 ¡n Case 7/82 GVL v Commission [1983]ECR 483, at p. 505, paragraphs 37 and 38 of the decision; see also the judgment of 25 October 1979 in Case 22/79 Greenwich Film Production v SACEM [1979] ECR 3275, at p. 3288; see also, with regard to the acquisition of shareholdings, the judgment of 6 March 1974 in Joined Cases 6 and 7/73 Commercial Solvents v Commission [1974] ECR 223, at p. 252, paragraph 33 of the decision.

41 In relation to Article 85 of the Treaty, see also the judgment of 12 December 1967 in Case 23/67 Brasserie tie Haecht v Wilkin [1967] ECR 407, at p. 415.

42 Judgment of 13 March 1979 in Case 119/78 Peureux v Services fiscaux de la Haute-Saône [1979] ECR 975, at p. 986, paragraph 28 of the decision; see also the judgment of 20 February 1979 in Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, at p. 662, paragraph 7 of the decision.

43 On that point, I would merely refer to CBEM, supra, at pp. 3276-8, with regard to the abuse of a dominant position in relation to ancillary activities which could be carried on by another undertaking.