A Follow-on Innovation Perspective in the Biopharmaceutical Industry
Chapter 6: The Duty to Deal under Art. 82 EC
6.1 Introduction This chapter considers the duty of a dominant firm to deal with competitors/ customers and the cases in which it is lawful under Art. 82 EC to refuse or cease to deal. The chapter does not address the general objections and rationale behind compulsory licensing as these have already been addressed. Furthermore, it does not consider the role of contract law as this is beyond the scope of enquiry for the purposes of this chapter. In contrast, this chapter undertakes a pragmatic examination of the case law and seeks to propose a specific interpretation of the state of the law. There is no consistent rationale behind the case law in this area and therefore the state of the law is far from clear. Many questions remain unanswered, nevertheless, as will be shown in the next chapter, it is still possible to use Art. 82 in its current form to address concerns relating to access in the biopharmaceutical industry. The chapter proceeds on the basis of the categorisation of the Advocate General in Oscar Bronner, which identifies the three main factors leading to a duty to deal under EC competition law. These involve the ‘dependence’ cases, the leverage cases and/or the essential facilities cases. Based on these factors, it examines the rationale behind the duty to deal, and what each of these circumstances involves. 6.1.1 What is a Refusal to Deal and What is the Rationale Behind its Prohibition? Clear guidance on the refusal to deal is difficult to...
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