Geradin, Damien --- "Refusal to Supply and Margin Squeeze: A Discussion of Why the ‘Telefonica Exceptions’ are Wrong" [2011] ELECD 794; in Govaere, Inge; Quick, Reinhard; Bronckers, Marco (eds), "Trade and Competition Law in the EU and Beyond" (Edward Elgar Publishing, 2011)

Book Title: Trade and Competition Law in the EU and Beyond

Editor(s): Govaere, Inge; Quick, Reinhard; Bronckers, Marco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857935663

Section: Chapter 24

Section Title: Refusal to Supply and Margin Squeeze: A Discussion of Why the ‘Telefonica Exceptions’ are Wrong

Author(s): Geradin, Damien

Number of pages: 12

Extract:

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 condi-
tions 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 7­73, Commercial Solvents and Others v Commis-
sion [1974] ECR 223; Case T-69/89, Radio Telefis Eireann v Commission of the
European Communities (the `Magill' case) [1991] EUECJ T-69/89; [1991] ECR II-485; C-7/97, Oscar Bron-
ner v Mediaprint [1998] EUECJ C-7/97; [1998] ECR I-7791; Case C-418/01, IMS Health GmbH & Co.
OHG v NDC Health GmbH & Co. KG [2004] EUECJ C41801; [2004] ECR I-5039; Case T-201/04, Microsoft
Corp. v Commission [2007] ECR II-3601. For a discussion of the refusal to ...