Edited by Inge Govaere, Reinhard Quick and Marco Bronckers
Chapter 24: Refusal to Supply and Margin Squeeze: A Discussion of Why the ‘Telefonica Exceptions’ are Wrong
Damien Geradin 24.1 INTRODUCTION In its Guidance Paper on Article 102 of the Treaty on the Functioning of the European Union (TFEU),1 the Commission established three conditions that in its view must normally be satisﬁed before a ‘refusal to deal’2 or ‘margin squeeze’3 may be considered contrary to Article 102 TFEU. These 1 Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings issued in December 2008, OJ (2009) C45/7. 2 ‘Refusal to deal’ cases typically arise where a vertically-integrated dominant ﬁrm refuses to grant access to an input that is essential for a rival to compete with the dominant ﬁrm on a downstream market. The conditions under which a refusal to supply can infringe Article 102 TFEU have been set by the EU courts in the following cases: See Cases 6 and 7–73, Commercial Solvents and Others v Commission  ECR 223; Case T-69/89, Radio Teleﬁs Eireann v Commission of the European Communities (the ‘Magill’ case)  ECR II-485; C-7/97, Oscar Bronner v Mediaprint  ECR I-7791; Case C-418/01, IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG  ECR I-5039; Case T-201/04, Microsoft Corp. v Commission  ECR II-3601. For a discussion of the refusal to supply case law of the ECJ, see Geradin, D., ‘Limiting the Scope of Article 82 of the EC Treaty: What can the EU Learn from the US Supreme Court’s Judgment in Trinko in the wake...
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