Facts
The Fribourg Electric Utilities (EEF) was a distinct public law institution with legal personality, responsible for the production, marketing, and distribution of electricity in the canton of Fribourg. In 1999, the Migros Cooperative Federation concluded an electricity supply contract with Watt Suisse AG and requested EEF to transmit the electricity purchased from Watt through the network operated by EEF, which the latter refused.
Watt and Migros then requested the Secretariat of the Competition Commission to open a preliminary investigation and an investigation against EEF, arguing that its refusal constituted an abuse of a dominant position within the meaning of Art. 7 CartA. The Competition Commission found that EEF enjoyed a dominant position in the regional and supra-regional electricity distribution market and had abused this position by refusing to transmit Watt's electricity through its network.
Considerations
The Federal Tribunal dismissed EEF's appeal. It considered that the Cartel Act was applicable to the electricity sector, despite the rejection by the people of the Electricity Market Act, and that EEF's refusal to transmit Watt's electricity through its network constituted an abuse of a dominant position within the meaning of Art. 7 CartA, insofar as this refusal was not justified by objective reasons.
The Federal Tribunal noted in particular that the mere fact of entrusting a company with a task of public interest was not sufficient to exclude the application of the Cartel Act, unless the performance of this task was at risk of being compromised by…