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EUROPEAN COMMISSION DG Competition - page 91 / 113

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9.1 INTRODUCTION

Even Domcos are entitled to chose whom to supply 207. Undertakings are generally entitled to determine whom to supply and to decide not to continue to supply certain trading partners. This is also true for dominant companies.

Horizontal refusal to supply or threats may be anticompetitive 208. Refusals to supply or threats of refusals to supply by dominant companies may,

however, be anticompetitive. Examples include halting supplies to punish buyers for dealing with

competitors126 and refusing to supply buyers that do not agree to exclusive dealing or tying arrangements. In such circumstances the refusal to supply is best viewed as an instrument to achieve another purpose, such as exclusive dealing or tying, and should therefore be analysed as part of a single branding or tying practice.127 Such practices are normally not aimed at excluding the buyer but rather a competitor of the dominant company.

Vertical Foreclosure 209. This section focuses instead on situations where a dominant company denies a buyer access to an input in order to exclude that buyer from participating in an economic activity (vertical foreclosure). Although the excluded buyer could be only a customer, typically

competition problems arise when it also is a rival to the dominant company in the economic activity for which the input is needed. This type of exclusion may cover a broad range of practices, such the termination of an existing commercial relationship as,128,the refusal to supply products, to provide information, to license intellectual property rights (IPR)129 or to grant access to an essential facility or a network.130 Practices such as delaying tactics in supplying, imposing

126 127 128 Case 27/76 United Brands, cited in footnote 5. See sections 7 and 8. Joined Cases 6/73 and 7/73, Istituto Chemioterapico S.p.A. and Commercial Solvents Corporation v Commission, [1974] ECR 223. Case 238/87, AB Volvo v Erik Veng (UK) Ltd, [1988] ECR 6211; Joined Cases C-241/91 P and C-242/P Magill, cited in footnote 58; and Case C-418/01, IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG, [2004] ECR I-5039. See Commission Decisions B&I Line plc v Sealink Harbours Ltd and Stena Sealink Ltd [1992] 5 CMLR 255; IV/34.689 Sea Containers v Stena Sealink – Interim Measures, (Commission Decision 94/19/EC of 21 December 1993, OJ 1994 L 15, 18.01.1994, pp. 8–19); Port of Rødby (Commission Decision of 21 December 1993, OJ 1994 129 130

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