Luxembourg, 21/03/2002 (Agence Europe) - As reported in EUROP E, the Court of First Instance decided in the UPS case, that the fact that Deutsche Post possesses funds for acquiring joint control of DHL does not justify presuming an abuse of a dominant position in the reserved postal market. "However, the funds deriving from the monopoly and used for the acquisition must not stem from excessively high prices or other abusive practices on the reserved postal market" notes the Court.
UPS Europe SA had lodged an appeal against the Commission's decision on 10 June 1998 rejecting its complaint of abuse of a dominant position by Deutsche Post. In 1998 the Commission received a notification of a proposed concentration by which Deutsche Post sought to acquire joint control of DHL with Deutsche Lufthansa and Japanese Airlines Company. UPS appealed but its complaint was rejected by the Commission.
UPS brought an action before the Court of First Instance for annulment of that decision, which was dismissed by the Court, noting "that the fact that an exclusive right is granted to an undertaking does not preclude that undertaking from earning profits from the activities reserved to it and does not preclude it from extending its activities into non-reserved areas". The Court press release explains "Where there are grounds for suspecting an abuse of a dominant position, it is necessary to examine the source of the funds employed. In the present case, UPS had not proved any abusive practice on the part of Deutsche Post on the reserved letter market and the fact that Deutsche Post possessed funds for acquiring the shares in DHL did not imply the existence of abusive conduct on the reserved market."