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EUROPEAN COMMISSION DG Competition - page 109 / 113





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mostly done through either tying or a refusal to deal. The tying can come about in the various ways described in the section on tying. The refusal to deal may, for instance, involve a refusal to supply information needed to provide products or services in the aftermarket; a refusal to license intellectual property rights; or a refusal to supply spare parts needed in order to provide aftermarket services.


Objective justification and efficiency defence as for tying 265. The dominant company may bring forward as possible objective justifications arguments similar to those described in the tying section; that is, arguments related to, for instance, the guarantee of the quality and good usage of the products. The dominant company may also invoke an efficiency defence. For instance, reserving the aftermarket to itself may help the dominant company to achieve savings in production, distribution or transaction costs. The

comments made on such arguments in the tying section apply equally here.

Notes and Questions on DG Competition discussion paper on the application of Article 82 of the Treaty to Exclusionary Abuses (DP)

1. What is the purpose of “public consultation” discussion papers versus the “guidance” that the Commission publishes from time to time? Why do you think DG Comp did not issue guidelines?

2. Paragraph 4 of the DP stresses that the Commission’s approach to Art. 82 enforcement will be based on the “likely effects” of the conduct in question on the market. What other approach has/might the Commission take(n).

3. In 1998 the European Commission issued its “Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings.” In it the Commission emphasized an “effects-based” approach. In paragraph 5, it elaborated that the Commissioner “will focus on those types of conduct that are most harmful to consumers.” However in paragraph 6, it added that it will emphasize “safeguarding the competitive process in the internal market and ensuring that undertakings which hold a dominant position do not exclude their rivals by other means than competing on the merits…”. Does it appear that any

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