Trade and Competition Law in the EU and Beyond
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Trade and Competition Law in the EU and Beyond

Edited by Inge Govaere, Reinhard Quick and Marco Bronckers

This well-documented book comprises a stellar cast of European and American authors delivering an overview of cutting edge issues in the areas of trade and competition law, arising in the EU and beyond.
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Chapter 24: Refusal to Supply and Margin Squeeze: A Discussion of Why the ‘Telefonica Exceptions’ are Wrong

Damien Geradin


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 [1974] ECR 223; Case T-69/89, Radio Telefis Eireann v Commission of the European Communities (the ‘Magill’ case) [1991] ECR II-485; C-7/97, Oscar Bronner v Mediaprint [1998] ECR I-7791; Case C-418/01, IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG [2004] ECR I-5039; Case T-201/04, Microsoft Corp. v Commission [2007] 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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