On 23 November 2012, the Luxembourg Competition Council (Conseil de la concurrence) adopted a decision to accept commitments from Valora (formerly Messageries Paul Kraus, or "MPK"), the sole wholesale supplier of national and international press products in Luxembourg. Valora had changed its distribution procedure and allegedly included abusive terms in its distribution agreements with press shops.
In January 2011, two press shops filed a complaint with the Luxembourg Competition Council against Valora.
In its August 2012 statement of objections, the Competition Council reached the preliminary conclusion that the following practices were likely to constitute an abuse of dominant position within the meaning of Article 102 of the Treaty on the Functioning of the EU ("TFEU") and Article 5 of the Luxembourg 2011 Competition Act (Loi du 23 octobre 2011 relative à la concurrence):
- the replacement of the daily overview with a weekly overview (making it more difficult for press shops to monitor Valora's deliveries and invoices);
- the inclusion of several unnecessary restrictions in agreements between Valora and individual press shops, such as:
- an exclusivity clause in favour of Valora
- a requirement for press shops to purchase at least 1.000 press titles
- a requirement to use the brand name MPK and to install uniform furniture, at the expense of the point of sale
- a requirement that invoices be paid by direct debit
- the imposition of specific opening hours, and
- a limitation of the number of unsold items that can be returned and a commission on the return of such items.
Valora proposed several commitments in late October 2012 and early November 2012, addressing several concerns raised by the plaintiffs and by the Competition Council in its statement of objections. The Competition Council accepted these commitments in its decision of 23 November 2012. For instance, Valora offered to provide a daily overview of the number of packages delivered, upon request, and to adapt its IT system to allow the provision of both weekly and daily overviews. This commitment only partially addresses the concerns raised, however, and will be reassessed as from 1 July 2013.
In accepting Valora's commitments, the Competition Council has made clear that it prefers to take a pragmatic approach to restoring effective competition on the market rather than impose heavy fines if the undertakings concerned are cooperative. After the entry into force of the 2011 Competition Act on 1 February 2012, the newly composed Competition Council thus appears to be following an approach similar to that of the Competition Council in its previous composition.
It further appears that the integration of the authority in charge of the investigation of competition cases, the Competition Inspectorate (Inspection de la concurrence), into the Competition Council, brought about by the 2011 Competition Act, has contributed to shorter deadlines in the handling of cases.
One criticism could be that, in its decision of 23 November 2012, the Competition Council simply has confirmed the preliminary findings put forward on the statement of objections, which could be seen as a finding of an abuse of dominance. This seems to be at odds with the very nature of a commitment decision which has in principle as a consequence that the case under investigation is terminated without any finding of an infringement. This feature is very important in practice and constitutes an incentive for undertakings to offer commitments, as the absence of a finding of infringement reduces the risk of damages actions by third parties.
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