Refusal to Deal

Abstract

This paper examines how Article 82 of the EC Treaty (prohibiting the abuse of a dominant position) should be applied to refusal to supply cases. As a starting point, and for the sake of clarification, this paper explains (a) why the antitrust analysis of refusals to supply customers differs from the analysis of refusals to supply competitors (Part II), and (b) why a distinction must also be made between unilateral and concerted refusals to supply (Part III). The paper then deals with unilateral refusals to supply competitors. In this connection, there are two preliminary issues, namely (a) whether a distinction should be made between a first-time refusal to supply and the termination of an existing supply relationship; and (b) whether a distinction should be made between refusal to deal involving tangible property rights and refusal to licence IPRs. These issues are addressed in Part IV and Part V respectively. Part VI considers the respective merits of the various possible ways to apprehend unilateral refusals to supply under Article 82 (per se legality v. rule of reason approach v. the screens approach v. the exhaustive checklist approach). In Part VII an attempt is made to formulate a multi-pronged legal test. Part VIII briefly deals with the relationship between refusal to supply abuses and other types of potentially abusive conduct under Article 82. Finally, Part IX concludes by making a number of recommendations.

Keywords: Refusal to deal, Refusal to supply, Refusal to license, Essential facilities, Essential facility, Vertical integration, Monopoly, Antitrust, Competition

JEL Classification: D23, D42, D61, K21, L11, L12, L22, L23, L41