Judgment_paragraph 83 · European Night Services Ltd (ENS), Eurostar (UK) Ltd, formerly European Passenger Services Ltd (EPS), Union internationale des chemins de fer (UIC), NV Nederlandse Spoorwegen (NS) and Société nationale des chemins de fer français (SNCF) v Commission of the European Communities (T-374/94, T-375/94, T-384/94, T-388/94)

83The applicants point out that in the decision the Commission defined the relevant markets as those for the transport of business travellers and of leisure travellers on each of the routes served by ENS. They state that, based on forecast levels of demand in 1995 (set out in Table 17, at p. 26 of their notification), ENS services were likely to account for no more than 4% of those markets (2.4% of the market for business travellers and 5% of the market for leisure travellers). Taking account of the Commission's notice of 3 September 1986 on agreements of minor importance which do not fall under Article 85(1) of the Treaty establishing the European Economic Community (OJ 1986 C 231, p. 2), those market shares are thus negligible. Even on an individual route basis, Table 17 in the notification demonstrates that the only market shares in excess of 4% likely to be enjoyed by ENS were 6% and 7% for leisure travellers on the London-Amsterdam and London-Frankfurt/Dortmund routes respectively. As regards the Commission's view that a 5% market share warrants considering the undertaking concerned to be of sufficient importance for its behaviour to be in principle capable of affecting trade between Member States, the applicants refer to Case T-7/93 Langnese-Iglo ν Commission [1995] ECR II-1533 and Case T-9/93 Schöller ν Commission [1995] ECR II-1611, which confirm that a market share of over 5% is insufficient by itself to allow the conclusion that there is an appreciable restriction of competition. The point was also made in the notification that ENS's market share was likely to remain static or even fall as the market grew faster than ENS's ability to increase the frequency of its services (paragraph II.4. c.6, p. 27 of the notification). The relevant market for both services (business and leisure travel), therefore, is very large and it is clear that ENS would have no power to control the price, quality and availability of services or to exclude or weaken competition.

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