Dispensing with Indispensability

38 Pages Posted: 8 Nov 2019 Last revised: 12 Dec 2019

See all articles by Niamh Dunne

Niamh Dunne

London School of Economics - Law Department

Date Written: September 11, 2019

Abstract

‘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

Dunne, Niamh, Dispensing with Indispensability (September 11, 2019). LSE Legal Studies Working Paper No. 15/2019, Available at SSRN: https://ssrn.com/abstract=3476938 or http://dx.doi.org/10.2139/ssrn.3476938

Niamh Dunne (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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