I. Decision
After the investigation, the board of the AdC considered there was an abuse of dominant position of PT Comunicações, S.A. (PTC) in the wholesale markets for circuit rental. The abuse was materialised through the definition and application by the defendant of the discount system of circuit rental tariffs which was in force between 1 March 2003 and 7 March 2004.
All things considered, the Board decided to impose a fine of 2.1 million euros.
At the time of the facts, the defendant company was, in practice, the sole provider of wholesale services of leased circuit terminal segments and analogue trunk segments, and in the wholesale service of digital trunk segments its market share was always above 86%. As a result, PTC's offer in the wholesale circuit rental markets was unavoidable for the provision of these and other electronic communication services by operators alternative to those of the PT Group in the retail markets.
In 2004, following a complaint lodged with the Portuguese Competition Authority, an investigation was opened which proved the abuse of the defendant's dominant position in the wholesale leased circuit markets. It was shown that PTC applied discriminatory conditions in relation to equivalent services, limited production, distribution, technical development and investment through the definition and application of a discount system which favoured the companies of the Group to which it belongs (PT Group) to the detriment of competitors.
In the process, the defendant was ensured the exercise of her rights of defence at all times.
II. Abuse of Dominance
The systematic application of discriminatory conditions to equivalent services, as well as the limitation of production, distribution, technical development and investment by an undertaking in a dominant position are prohibited and punished under national and Community competition law.
Such conduct by the defendant constituted an abuse of a dominant position which produced effects not only in the leased circuit markets, making it impossible for companies competing with the PT Group to compete on equal terms, but also restricted competition in the set of markets which use leased circuits as input for the provision of electronic communications services (for example, fixed telephone services, broadband access services, mobile communications services, among others).
III. Imposed sanctions
Abuse of a dominant position is punishable by a fine of up to 10% of the offending company's turnover in the last year.
In determining the amount of the fine, the Competition Authority took into account the criteria provided for by law, having especially considered as a mitigating circumstance the decision of the ICP-National Communications Authority (ICP-ANACOM) not to oppose the entry into force of PTC's leased circuit tariff. The AdC also took into consideration the fact that the defendant ceased to apply the said tariff following the decision of the sector regulator, which determined it on 10 February 2004.
As an aggravating circumstance, the AdC considered the susceptibility of affecting intra-Community trade. All things considered, a fine of EUR 2.1 million was imposed.
As an ancillary penalty, as the gravity of the practice so justifies, it was also ordered that the defendant publish, within 20 days of the decision becoming final and unappealable, an extract of the decision in the Second Series of the Diário da República and in a national newspaper.
IV. Consultation Procedures
The decision adopted by the Board of the Portuguese Competition Authority was preceded by consultation with the European Commission and ICP-ANACOM.
(Press Release No 15/2008)