Refusal to Deal within EU Competition Law
32 Pages Posted: 12 Jun 2010 Last revised: 30 Nov 2010
Date Written: June 11, 2010
Refusal to deal is in principle not prohibited under the EU competition law. Only in exceptional circumstances dominant undertaking would be charged with an obligation to deal. In order to approach the analytical framework for refusal to deal in the EU, this article investigates in total 21 cases of refusal to deal taking place at the European level, from the earliest Case Commercial Solvents to the latest Case Microsoft. Those cases are first divided into five groups: (1) refusal to deal with non-competitors while serving others; (2) refusal to deal with competitors while serving others; (3) discontinuing the supply to all third parties; (4) refusal to deal a product/service that is always reserved for own use; and (5) refusal to grant IP licenses. Based on the examination of every cases in each group, it is found that, first, the approaches remain the same for the first and the second group of cases; secondly, the analyses are also equivalent for the third and fourth group of cases, though a difference may exist as to defining the requested product as a separate market; and thirdly, the last group cases are dealt with under a different framework which nevertheless contains many inconsistencies. In the end, a general approach to analysing refusal-to-deal cases is provided.
Keywords: Refusal to Deal, Essential Facilities, Abuse of a Dominance Position, EU Competition Law
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