Mr. Gutmann acts as the class representative (CR) in three simultaneous proceedings before the Competition Appeal Tribunal (CAT). These cases examine the practices of train companies regarding the sale of a specific type of ticket known as Boundary Fares. The main issue in this case is that the defendants have allegedly double-charged consumers for travel, facilitated by an opaque, inaccessible system. The CR’s case is based on the lack of transparency.
The CR faced a tough challenge from the start because the law does not specify a lack of transparency as a form of abuse, and there is no authoritative case law indicating that a lack of transparency can be considered an abuse on its own. However, the types of abuse listed in the relevant provisions are not exhaustive. Abuse is a broad concept.
However, in the CAT’s view, that concept is not unlimited. Competition law is not a general law of consumer protection. Just because the dominant company could have done a part of its business better doesn’t mean this conduct is considered abuse. The prohibition of abuse does not require the company to operate its business in a way that maximizes benefits for its customers.
The relevant legal provisions state that abuse may consist of, among other things, imposing unfair prices or other unfair trading conditions. Therefore, the CAT held, the pertinent question is whether it has been proven that each system for selling Boundary Fares was so opaque and inaccessible that a double charge was imposed on consumers.
The CAT determined that there was no issue of imposition. Therefore, none of the conduct alleged against the train operators constitutes an abuse of dominance.
In cases like Deutsche Telekom and DSD, customers who wanted to use the service had no real choice but to pay the contested fee. In several other cases currently before the CAT, consumers are effectively locked in; so embedded in a particular product or service that they find it impossible to switch to an alternative. These cases are clearly different.
Nonetheless, it’s unfortunate that the CAT has adopted this dogmatic approach and has not accepted the arguments as presented by the CR.
There are two types of abuse: exclusionary abuse and exploitative abuse. Exploitative abuse directly harms consumers, whereas exclusionary abuse harms them indirectly. The end goal is always consumer protection. Consumer protection and competition law are complementary fields; two sides of the same coin because both ultimately aim to ensure economic justice and consumer welfare through fair market practices. The CAT faced a decision on whether to allow the conduct shown by the CR or prohibit it. By permitting it, the CAT missed an opportunity to reinforce the legal protections crafted by competition and consumer protection laws, which aim to shield vulnerable consumers from harm caused by powerful companies.
