REFUSAL TO DEAL IN THE USA AND EU ANTITRUST LAW

Abstract

Although undertakings have the freedom to conclude contracts with whomever they want there are circumstances in which a refusal to supply goods or services or to grant access to a so-called 'essential facility' by a dominant undertaking can amount to an abuse of a dominant position. In the USA refusal to deal is based on three theories: anticompetitive animus usually demonstrated by a change in existing business practices with a specific intent to harm rivals, essential facilities doctrine and monopoly leveraging theory. In the European Union refusal to deal or the essential facilities doctrine has been applied over past thirty years by the European Commission, the Court of First Instance and the European Court of Justice. In addition, the European Commission's recently issued Guidelines on the abuse of dominance endorse the doctrine and sensibly describe its application and limitation. The concept of refusal to deal covers a board range of practices, such as a refusal to supply products to existing or new customers, refusal to license intellectual property rights or refusal to grant access to an essential facility or a network. These practices constitute an abuse if certain circumstances are fulfilled: product or facility has to be really essential, the refusal is likely to lead to consumer harm, that it is unjustified and such as to exclude any competition on a downstream market.