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EUROPEAN COMMISSION DG Competition - page 100 / 113





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certain period of time in order to ensure an adequate return on such investment,139 this entails eliminating effective competition during this period.

even when

More likely to be abusive if investments would have been made anyhow – e.g. 236. The circumstances in which a refusal to supply by a dominant company may be abusive are therefore more likely to be present when it is likely that the investments that have led to the existence of the indispensable input would have been made even if the investor had known that it would have a duty to supply. This could be the case if the input is indispensable only because the owner enjoys or has enjoyed until recently special or exclusive rights within the meaning of Article 86(1) EC. Another example could be that the original investment primarily was made for reasons not related to the market in which the company asking access to the input intends to use the input. The original investment in a facility may also have been made by a public authority using investment criteria that likely would have led to the investment being made even if there would have been a duty to supply. And the investments behind innovations leading to intellectual property rights may not have been particularly significant, in which case it may be likely that the investment would have been made even knowing that a duty to supply would be imposed. In making such assessments the Commission will take account of the respective values that are at stake, including the possible positive effects on incentives to follow-on investment from allowing access. REFUSAL TO LICENCE INTELLECTUAL PROPERTY RIGHTS

An extra condition for access to IPRs 237. In the case of a refusal to license an IPR an additional condition may have to be met, as described in this section.

139 See also Commission Notice Guidelines on the application of Article 81(3) of the Treaty, cited in footnote 3, paragraphs 44 and 81, and Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services Ltd (ENS), Eurostar (UK) Ltd, formerly European Passenger Services Ltd (EPS), Union internationale des chemins de fer (UIC), NV Nederlandse Spoorwegen (NS) and Société nationale des chemins de fer français (SNCF) v Commission [1998] ECR II-3141, paragraph 230.

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