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EUROPEAN COMMISSION DG Competition - page 92 / 113

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unfair trading conditions and charging such prices that it is not economically viable for the buyer to continue its activity may also in reality amount to a refusal to supply.

May be exclusionary abuse 210. A refusal to supply may be classified as an exclusionary abuse. The dominant company prevents the requesting or terminated party from getting access to an input. As a result, this undertaking is either driven out of the market, marginalised or prevented from entering the market. For a refusal to supply to be abusive, it must, however, have a likely anticompetitive

effect on the market which is detrimental to consumer welfare.

Collective refusal to supply 211. A refusal to supply by several companies that are in a collectively dominant position can also be an abuse. This could take the form of refusing access to an input that is collectively owned by a group of companies. In addition, several collectively dominant companies refusing access to their individually owned inputs also could be abusive.

212. It is useful to distinguish between an “upstream” market for access to the input and a “downstream” market for which the input is needed in order to manufacture a product or provide a service.131 The owner of the input may refuse to supply in order to achieve a larger share of the profits in the downstream market. Moreover, the refusal to supply may allow the input owner to protect its position in the upstream market. If the downstream market is necessary as an outlet for a product or service from the upstream market, by eliminating competition in the downstream market the owner of the input may make it less attractive for potential rivals to challenge its position in the upstream market. Furthermore, eliminating competition in the downstream market can also eliminate the possible competition from a product in the downstream market which is or may become a threat to the input in the upstream market.

Purpose of requiring access

L 26.02.1994, pp 52/57; IV/33.544 British Midland v Aer Lingus, (Commission Decision 92/213/EEC of 26 February 1992, OJ 1992 L 9610/04/1992, pp. 34– 45. The terminology “upstream” and “downstream” may not always be completely appropriate in that the input may be at the same level as or downstream from the market for which it is needed. This may, for instance, arise where one undertaking controls a “downstream” distribution level that is indispensable in order to access customers. 131

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