## Facts

- Oscar Bronner GmbH & Co. KG published the Austrian daily newspaper *Der Standard*, with under 4% of national daily newspaper circulation.
- Mediaprint published *Neue Kronen Zeitung* and *Kurier*, held roughly 42–50% of Austrian daily newspaper circulation (about 71% of readers), and operated the only nationwide home-delivery system for daily newspapers in Austria.
- Bronner sought access to Mediaprint’s home-delivery network for “appropriate remuneration” so that *Der Standard* could be delivered through the system.
- Mediaprint refused, citing the administrative and financial investment required and denying any duty to assist competitors’ distribution.
- Bronner alleged that creating a competing nationwide home-delivery system was not economically viable given its small circulation and would require considerable expenditure.
- Bronner argued that alternatives (kiosk/shop sales and postal delivery) were not equivalent to early-morning home delivery and would reduce the newspaper’s attractiveness.
- Bronner claimed Mediaprint’s refusal was an abuse of dominance under Article 86 EC (now Article 102 TFEU) based on a refusal to supply access to an “essential facility.”
- An Austrian appellate court referred interpretive questions to the Court of Justice in preliminary ruling proceedings.

## Issues

1. Whether Article 86 EC is infringed when a dominant firm operating the only nationwide home-delivery scheme refuses, without objective justification, to provide access to a competing newspaper publisher for consideration.
2. Whether home delivery of daily newspapers is a distinct relevant product market or part of a broader distribution market including kiosks/shops and postal delivery.
3. Whether a preliminary reference seeking interpretation of Article 86 EC is admissible in litigation primarily applying national competition law.

## Decision

- The Court held the reference admissible because questions on EU-law interpretation are generally answered when relevant to the national court’s decision.
- The Court ruled that a dominant undertaking’s refusal to grant access to a facility is abusive only in exceptional circumstances and under strict cumulative conditions.
- On the facts described, Article 86 EC did not require Mediaprint to grant Bronner access to the home-delivery scheme.
- The Court left final market definition and application of the criteria to the national court, emphasizing substitutability analysis.

## Legal Principles

- Refusal to supply/access by a dominant undertaking violates Article 86 EC only if, cumulatively:
  - Access is indispensable because there is no actual or potential substitute for the facility or service;
  - The refusal is likely to eliminate all effective competition in a downstream or related market; and
  - The refusal lacks objective justification.
- “Indispensable” is not shown merely because access is commercially desirable or because alternatives are less advantageous; impossibility (technical, legal, or economic) to use or create alternatives is required.
- Relevant product market definition turns on substitutability: whether other distribution methods satisfy the same constant needs and are sufficiently interchangeable with home delivery.
- Competition law does not generally impose a duty on a dominant firm to share the benefits of significant investment with competitors absent the exceptional conditions for compelled access.

## Conclusion

The Court applied a demanding standard for compelled access to alleged essential facilities, holding that refusal to allow a rival newspaper access to a nationwide home-delivery network is not abusive absent proof of indispensability, likely elimination of competition in a related market, and lack of objective justification; the national court was left to apply these criteria and determine the relevant market.


Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG (Case C-7/97), 1998 E.C.R. I-7791 (Ct. Just. 1998)