Refuse to deal with customers or suppliers by an undertaking with a dominant position can be considered as act of abuse when it prevents or threaten
Though in general, each business may decide with whom they wish to transact, there are some situations when a refusal to deal may be considered an unlawful anti-competitive practice, if it prevents or reduces competition in a market. Wikipedia
Under Article 102 of the TFUE, refusal to deal as an act of abuse of a dominance position involves two markets in one of which an undertaking with a dominant
Can a supplier refuse to supply me with goods or services?
A refusal to supply does not necessarily constitute a breach of the Competition Act 2002 (the Act).
In general firms should be able to contract with parties of their choice; there is no compulsory requirement under law for a firm to supply.
EC Guidance
In between its Microsoft decision and the appeal judgment, the EC took the opportunity to reflect on the standards guiding the application of Article 102 TFEU, which resulted in a Discussion Paper (2005).
The paper is remarkable for its clear distinction between ‘termination of an existing supply relationship’ and ‘refusal to start supplying an inp.
from Commercial Solvents to Bronner
The Commercial Solventsjudgment (1974), which marked the start of the refusal to supply case law, concerned a disruption of supply.
Commercial Solvents (CS) had been supplying Zoja with Aminobutanol—a raw material required to manufacture the medicine Ethambutol—for five years.
After CS started manufacturing Ethambutol itself, it stopped supplying Z.
Is a refusal to supply a competitor a violation of Article 102 TFEU?
In essence, the CJEU has clarified that in cases of “constructive” or “implicit” refusal to supply to a competitor of an infrastructure, facility, or service, etc. (hereinafter referred to as an “input”), the requirement of the indispensability of such input is not necessary for an abuse of dominance in breach of Article 102 TFEU to occur.
Microsoft
Until the 2000s, the distinction between disruptions and refusals to supply did not play a major role.
It may have influenced case selection, with the EC prioritizing cases of disruption, but the number of cases is too small to draw firm conclusions.
United Brandsappeared, if not an aberration, at least a rarity.
In Microsoft I (2004), the EC asses.
The Return of United Brands
Just before publication of the Guidance Paper, the ECJ got another opportunity to rule on disruptions of supply.
In Sot.
Lélos (2008), it was asked for guidance in proceedings brought by pharmaceutical wholesalers against GlaxoSmithKline’s Greek subsidiary (GSK).
After years of fulfilling orders, GSK had halted supplies, which wholesalers distribut.
What happens if a competitor refuses to supply a network?
Since it is often economically unviable (or impossible in cases of IP) for market entrant to build their own network, a denial of access could lead to exclusion of the competitor from upstream or downstream markets– leading, potentially, to diminution in overall competition and consumer welfare.
Nonetheless Refusal to supply is a contentiousabuse.
What is refusal to supply case law?
Two main stands of case law under refusal to supply.
Set of cases dealing with intangible property (e.
IP with Microsoft Decision) and tangible property (gas transport networks, recycling facilities – Oscar Bronner).
Facts:
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