Dispensing with Indispensability
38 Pages Posted: 8 Nov 2019 Last revised: 12 Dec 2019
Date Written: September 11, 2019
‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under Article 102 TFEU. Since its adoption in Magill and Bronner, however, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article surveys the departures from the orthodoxy that can be found in the jurisprudence. In doing so, it measures the purported explanations for such derogations against the justifications for restraint encapsulated in the indispensability concept. Finally, it asks whether the weight of exceptions may reach the point of overwhelming, or ‘dispensing with,’ the original rule.
Keywords: competition law, EU law, antitrust, dominance, indispensability, essential facilities
JEL Classification: K21, K23, L43
Suggested Citation: Suggested Citation