On 23 May 2013, the Supreme Court of the Slovak Republic (“Supreme Court”) confirmed the correctness of the decision of the Antimonopoly Office of the Slovak Republic (“the AMO” or “the Office”) in the matter of infringement of competition rules by ENVI-PAK, a. s.. The Supreme Court changed the verdict of the Regional Court Bratislava (“Regional Court”) so thus it dismissed the complaint of ENVI-PAK against AMO. The Supreme Court thus upheld the Office´s decisions, by which a fine of EUR 18 394 was imposed on ENVI-PAK, a. s. (“ENVI-PAK”) for having abused its dominant position on the relevant market of granting approval to use the trademark “Green Dot” in the territory of the Slovak Republic. The assessed conduct represented violation of Art. 8 of the Act on Protection of Competition valid in the Slovak Republic as well as Article 82 of EC Treaty (now Article 102 of the Treaty on the Functioning of the European Union).
ENVI-PAK was in assessed period a sole undertaking entitled to provide “Green Dot” trade mark sublicenses in Slovakia. On that basis ENVI-PAK was entitled to provide individual licenses (sublicenses) to third parties, i. e. producers, distributors of packaging and packed goods, suppliers and importers for using the trademark “Green Dot” in the Slovak Republic and for the right to introduce on Slovak market the goods in packaging marked with “Green Dot” (licensed clients). Each importer, respectively another obliged person introducing in Slovak market packaging being already marked with “Green Dot”, had to make a contract with ENVI-PAK. There were no other alternative for obliged persons to obtain trademark “Green Dot” than a contract with ENVI-PAK.
ENVI-PAK acted at the same time on the market of providing services of authorized organizations, i. e. it provided packaging waste collection, recovery and waste recycling for obliged persons (service clients), where it was exposed to competition by another authorized organizations. Impacts of the abuse of dominant position by the company ENVI-PAK appeared in this market.
ENVI-PAK set the system of payments for Green Dot in such way, that its service clients, that are companies having used the packaging waste collection, recovery and recycling services of ENVI-PAK could use the Green Dot gratis, while companies using the services of its competitors, which were interested only in the “Green Dot” sublicense, had to pay a separate license fee. Final price paid by an undertaking applying only for the “Green Dot” sublicense was always higher than the price that the undertaking would have paid if it had been a service client of ENVI-PAK. For obliged person using Green Dot was not economically reasonable to be or to become service client of another competitive authorized organization. ENVI-PAK abused its dominant position in the market of granting approval to use the trademark Green Dot via individual licenses in such way that in fact it indirectly forced obliged persons using Green Dot to use also its services in the market of packaging waste collection, recovery and waste recycling, what led to limiting of expansion of competitors in the market.
As the conduct was also an infringement of European law, European Commission used the chance to express its opinion on the case. In its statement sent to the Supreme Court it expressed oneself to the parallel application of national and European competition law prohibiting the abusing of dominant position, as well as to possibility to impose a fine for the infringement of general prohibition of the abuse of dominance. The Commission´s statement is consistent with the argumentation stated in the Office´s appeal to the Supreme Court.
The decision is final and cannot be appealed.
