The Norwegian Supreme Court has concluded that Tine did not abuse its dominant position in its annual negotiations with Rema 1000 in autumn 2004.
This is the first time the Supreme Court has considered a case of abuse of dominant position (§ 11 of the Competition Act). The provision entered as part of the revision of the Competition Act in 2004.
– It has been important for the Norwegian Competition Authority to test various aspects of the application of the new provision, says the Director General for Competition Christine Meyer.
The treatment of the Supreme Court and earlier courts has provided some important clarification relating to the application of the prohibition of abuse of a dominant position. The Court of Appeals had ruled that Tine had a dominant position, so that § 11 applies. This point was not considered by the Supreme Court, and thus stands. The Supreme Court has clarified that the list of forms of abuses in § 11 is not exhaustive and that the same applies to the types of cases of abuse that have been developed by the European Court of Justice.
The Competition Authority notes that the majority of the Supreme Court, after an assessment, considers that Tine’s actions in this case did not constitute an abuse in the sense of § 11.
–The matter has now been tested in three courts with different outcomes. This shows that it was appropriate and important to test the case in the country's highest court, says the Director General for Competition.
The background of the matter is that in February 2007 the Competition Authority decided to impose on Tine an administrative fine of NOK 45 million for abuse of a dominant position and cooperation that restricts competition. Tine did not accept the fine and filed a lawsuit against the state, represented by the Competition Authority, to have the decision reviewed by the court.
After the Oslo District Court found, in 2009, that Tine's behavior was not in breach of the competition law, the Borgarting Court of Appeal came to a different conclusion in 2010. Tine appealed the Appeal Court's ruling to the Supreme Court.