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05 February 2015
The Croatian Competition Agency has not seen many cases related to access to infrastructure and the scope of the essential facilities doctrine, and it might be deduced from previous case law that Croatian practice should be based on the experiences of the European Commission and EU courts.(1) However, there have been a few cases related to the matter and every decision in terms of defining the scope of the essential facilities doctrine is welcome.
In December 2014 the agency dealt with a case which related to possible abuse of a vertically integrated undertaking in the bus transport market. The case attracted little media attention, but it did provide valuable information to those with an interest in competition law. Slavonija Bus stated that Autotrans(2) had prevented the operation of its bus lines to the island of Krk by not allowing vehicle access to the bus station. It also stated that Autotrans was active in the bus transport market through an affiliated company and represented direct competition to Slavonija Bus.
Unfortunately, the agency did not analyse the relevant upstream road transport market, although it would have been interesting to examine its standpoint on whether other types of transport can be considered substitutes to bus transport. However, in 2007 the agency adopted the view that the relevant market could be established only in relation to public-liner bus transportation of passengers.(3) It was likely that the agency would remain consistent with respect to its previous conclusions.
Therefore, the agency began by investigating whether the determined practice could be considered abusive according to Article 13 of the Competition Act. It appears that the agency will not seek to determine the relevant market or position of undertakings if it has concluded that the practice does not fall within the scope of the problem.
In its decision, which dismissed the applicant's complaint, the agency mentioned that devices or infrastructure that is essential for reaching customers and conducting business should be treated as an 'essential facility' as defined in competition law. The agency concluded that an abuse of dominant position would have occurred if Autotrans, apart from holding a dominant position in the market, had refused to allow Slavonija Bus access to the bus stop at the bus station as the essential facility for the boarding and alighting of passengers in Krk, without providing objective reasonable grounds that it was impossible for Slavonija Bus to conduct passenger boarding in any way other than by access to the bus stop at that station.
The agency determined that the bus station owned by Autotrans did not represent an essential facility for conducting internal road passenger transport by Slavonija Bus in Krk, since apart from the Autotrans station, there were two further stations with marked traffic areas for passenger boarding, meaning Slavonija Bus had other methods of passenger boarding. The agency also stated that access agreements had been drawn up objectively with respect to all undertakings requesting access, which meant that further analysis of their effects was unnecessary.
The agency also recognised the possibility of considering specific transport infrastructure (eg, bus stations and bus stops regulated by law and local self-government units, controlled or owned by undertakings) as falling within the scope of the cited doctrine.
For further information on this topic please contact Mislav Bradvica attorney at law in cooperation with Schoenherr by telephone (+385 1 4813 244), fax (+385 1 4813 073) or email (email@example.com). The Schoenherr website can be accessed at www.schoenherr.eu.
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