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proof for such an objective justification or efficiency defence will be on the dominant company.59 It should be for the company invoking the benefit of a defence against a finding of an infringement to demonstrate to the required legal standard of proof that the conditions for applying such defence are satisfied.60

78. In general there are two types of possible objective justifications. The first type of objective justification is where the dominant company is able to show that the otherwise abusive conduct is actually necessary conduct on the basis of objective factors external to the parties involved and in particular external to the dominant company (‘objective necessity defence’). The second type of objective justification is where the dominant company is able to show that the otherwise abusive conduct is actually a loss minimising reaction to competition from others (‘meeting competition defence’).

Efficiency defense – outweigh negative effects on competition 79. In relation to the efficiency defence the dominant company must be able to show that the efficiencies brought about by the conduct concerned outweigh the likely negative effects on competition resulting from the conduct and therewith the likely harm to consumers that the conduct might otherwise have.

5.5.1 OBJECTIVE NECESSITY DEFENCE

Objective necessity defined narrowly 80. The dominant company may be able to show that the conduct concerned is objectively necessary, for instance because of reasons of safety or health related to the dangerous nature of the product in question. Such necessity must be based on objective factors that apply in general for all undertakings in the market. On the basis of these factors the dominant company must be able to show that without the conduct the products concerned can not or will not be produced or distributed in that market. In these situations the Community Courts apply strictly the condition of indispensability. It is considered not the task of a dominant company to take steps on its own

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See Case T-203/01 Manufacture française des pneumatiques Michelin v Commission (Michelin II) [2003] ECR II-4071, paragraphs 107-109. See Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 04.01.2003, recital 5 and article 2.

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