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possible to apply the more detailed principles and tests, for instance because of insufficient access to relevant data, the Commission will analyse the case using the general principles in view of the central concern described above.

ECJ’s definition of abuse in the context of exclusionary conduct 57. The above is in line with the definition of exclusionary abuses given by the European Court of Justice. The Court has, in the context of exclusionary conduct, defined the term “abuse”

in the following way:

An objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of

the very presence of the undertaking in question, the degree of competition is

weakened and which, through recourse to methods different from those which

condition normal competition in products or services on basis of the transaction of commercial operators, has the effect of hindering the maintenance of the degree of

competition still existing in the market or the growth of that competition.”50

Capability, market context, market distorting foreclosure effect

58. This definition implies that the conduct in question must in the first place have the capability, by its nature, to foreclose competitors from the market. To establish such capability it

is in general sufficient to investigate the form and nature of the conduct in question. It secondly implies that, in the specific market context, a likely market distorting foreclosure effect must be

established. By foreclosure is meant that actual or potential competitors are completely or partially denied profitable access to a market. Foreclosure may discourage entry or expansion of rivals or encourage their exit. Foreclosure thus can be found even if the foreclosed rivals are not forced to exit the market: it is sufficient that the rivals are disadvantaged and consequently led to compete less aggressively. Rivals may be disadvantaged where the dominant company is able to directly raise rivals’ costs or reduce demand for the rivals’ products. Foreclosure is said to be market distorting if it likely hinders the maintenance of the degree of competition still existing in


Case 85/76 Hoffmann-La Roche, cited in footnote 5.

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