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the market or the growth of that competition and thus have as a likely effect that prices will increase or remain at a supra-competitive level.

Market distorting foreclosure effect 59. To establish such a market distorting foreclosure effect it is in general necessary not only to consider the nature or form of the conduct, but also its incidence, i.e. the extent to which the dominant company is applying it in the market, including the market coverage of the conduct or the selective foreclosure of customers to newcomers or residual competitors. Other market characteristics including the existence of network effects and economies of scale and scope may also be relevant to establish a foreclosure effect. In addition the degree of dominance will be a relevant factor. In general, the higher the capability of conduct to foreclose the wider its application, and the stronger the dominant position, the higher the likelihood that an anticompetitive foreclosure effect results.51 In view of these sliding scales, where in the following sections various factors are used to indicate circumstances under which a likely foreclosure effect is considered to occur with high(er) or low(er) likelihood, it needs to be kept in mind that these descriptions can not be applied mechanically.

If clearly no efficiencies, exclusion rebuttably presumed to be abusive

60. Where a certain exclusionary conduct is clearly not competition on the merits, in

particular conduct which clearly creates no efficiencies and which only raises obstacles to residual competition, such conduct is presumed to be an abuse.52 However, the dominant

company will have the possibility to rebut that presumption. Such rebuttal can be brought by providing convincing evidence that the conduct does not and will not have the alleged likely exclusionary effect, or that the conduct is objectively justified (see in particular paragraph 80

below).

5.2 PRICE VERSUS NON-PRICE BASED EXCLUSIONARY CONDUCT

51

52

As to the importance of the degree of dominance for finding abuse, see Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports, cited in footnote 4, paragraph 119; Case T-228/97 Irish Sugar, cited in footnote 38, paragraph 186. See for instance the recent Commission decision AstraZeneca of 15.06.2005.

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