Prokent/Tomra, a Textbook Case? Abuse of Dominance Under Perfect Information

Abstract:     
On 29 March 2006 the Commission adopted the Prokent/Tomra decision imposing a fine of € 24 million on the Norwegian group Tomra, a supplier of so-called reverse-vending machines that are used by retail outlets to collect empty drink containers. The Commission found that Tomra abused its dominant position and therefore infringed Article 82 of the EC Treaty and Article 54 of the EEA Agreement in five different EEA markets: Austria, Germany, the Netherlands, Norway and Sweden. The infringement committed by Tomra Systems ASA, Tomra Europe AS and its five national subsidiaries in the relevant EEA markets (together ‘Tomra’) consisted of the operation of a system of exclusivity agreements, individualised quantity commitments and individualised retroactive rebate schemes, restricting or at least delaying the market entry of other machine manufacturers. This in turn led to the foreclosure of the market for Tomra’s competitors, in some instances even to their elimination from the market to the detriment of consumers. The Commission’s investigation was triggered in 2001 by a complaint from a German supplier of reverse vending machines, Prokent, asking the Commission to investigate whether Tomra was abusing its dominant position, in particular through agreements concluded with several large retail companies that allegedly denied Prokent access to the market. Following the inspections carried out in Tomra’s premises, and several years of further investigation, the Commission found that Tomra in fact abused its dominance in the time span of five years from 1998 to 2002. The infringement was found to be serious, and a corresponding fine was imposed.

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