competitors Archives - Pavel, Margarit and Associates

The request for a preliminary ruling has been made in proceedings between SIA ˜Maxima Latvija (˜Maxima Latvija) and the Konkurences padome (Competition Council) concerning a fine imposed by it on Maxima Latvija for having concluded a series of commercial lease agreements with shopping centres; those agreements containing a clause having an anti-competitive object. By its first question, the referring court asks, in essence, whether Article 101(1) TFEU must be interpreted as meaning that the mere fact that a commercial lease agreement for the letting of a large shop or hypermarket located in a shopping centre contains a clause granting the lessee the right to oppose the letting by the lessor, in that centre, of commercial premises to other tenants, means that the object of that agreement is to restrict competition within the meaning of that provision. As regards the concept of restriction of competition ˜by object, the Court has held that it must be interpreted restrictively and can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects. Taking account of the economic context in which agreements, such as those at issue in the main proceedings are to be applied, the analysis of the content of those agreements would not, in the light of the information provided by the referring court, show, clearly, a degree of harm with regard to competition sufficient for those agreements to be considered to constitute a restriction of competition ˜by object within the meaning of Article 101(1) TFEU. In the light of all the foregoing considerations, the answer to the first question is that Article 101(1) TFEU must be interpreted as meaning that the mere fact that a commercial lease agreement for the letting of a large shop or hypermarket located in a shopping centre contains a clause granting the lessee the right to oppose the letting by the lessor, in that centre, of commercial premises to other tenants, does not mean that the object of that agreement is to restrict competition within the meaning of that provision. By its second to fourth questions, which should be considered together, the referring court asks, in essence, under what conditions commercial lease agreements, such as those at issue in the main proceedings, may be considered to be an integral part of an agreement having the ˜effect of preventing, restricting or distorting competition within the meaning of Article 101(1) TFEU. In the present case, the assessment of the impact of the agreements at issue in the main proceedings on competition must take account, in the first place, of all of the factors which determine access to the relevant market, for the purposes of assessing whether, in the catchment areas where the shopping centres which are covered by those agreements are located, there are real concrete possibilities for a new competitor to establish itself, including through the occupation of commercial premises in other shopping centres located in those areas or by occupying other commercial premises located outside the shopping centres. Accordingly, it is appropriate in particular to take into consideration the availability and accessibility of commercial land in the catchment areas concerned and the existence of economic, administrative or regulatory barriers to entry of new competitors in those areas. It is only if, after a thorough analysis of the economic and legal context in which the agreements at issue in the main proceedings occur and the specificities of the relevant market, it is found that access to that market is made difficult by all the similar agreements found on the market, that it will then be necessary to analyse to what extent they contribute to any closing-off of that market, on the basis that only agreements which make an appreciable contribution to that closing-off are prohibited. To assess the extent of the contribution of each of the agreements at issue in the main proceedings to the cumulative closing-off effect, the position of the contracting parties on the market in question and the duration of the agreements must be taken into consideration). On those grounds, the Court (Fourth Chamber) hereby rules: 1. Article 101(1) TFEU must be interpreted as meaning that the mere fact that a commercial lease agreement for the letting of a large shop or hypermarket located in a shopping centre contains a clause granting the lessee the right to oppose the letting by the lessor, in that centre, of commercial premises to other tenants, does not mean that the object of that agreement is to restrict competition within the meaning of that provision. 2. Commercial lease agreements, such as those at issue in the main proceedings, may be considered to be an integral part of an agreement having the ˜effect of preventing, restricting or distorting competition within the meaning of Article 101(1) TFEU, from which it is found, after a thorough analysis of the economic and legal context in which the agreements occur and the specificities of the relevant market, that they make an appreciable contribution to the closing-off of that market. The extent of the contribution of each agreement to that closing-off effect depends, in particular, on the position of the contracting parties on that market and the duration of that agreement.

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CJEU. Commercial lease agreements. Right of the anchor tenant to prevent the lessor letting commercial premises to third parties