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EUROPEAN COMMISSION DG Competition - page 93 / 113





93 / 113

213. The main purpose of forcing companies to supply is to improve the competitive situation in the downstream market. However, investment incentives may also be influenced,

both negatively and positively. The knowledge that they may have a duty to supply against their will might lead companies not to invest in the first place or to invest less. Other companies may be tempted to free ride on the investment made by the dominant company instead of investing themselves. However, access to the input may also lead other firms to increase investment in, for

instance, follow-on research and development that would otherwise not be possible or profitable.

Enforcement policy towards refusals to supply has to take into account both the effect of having more short-run competition and the possible long-run effects on investment incentives.

Close scrutiny of factual and economic context required 214. Given these considerations, any obligation to supply pursuant to Article 82 can be established only after a very close scrutiny of the factual and economic context; the factors which go to demonstrate that an undertaking’s conduct in refusing to supply is abusive are highly dependent on the specific economic and regulatory context in which the case arises.


Variety of practices and situations 215. The concept refusal to supply covers a variety of practices and situations; it is not possible for this paper to cover all of them. The situations that are covered are the following: First, where one or more companies are terminating an existing supply relationship; second, where one or

more companies are refusing to start supplying an input, including where this input is covered by

intellectual property rights; third, where this input is information necessary for interoperability.

For access to electronic communications networks see Access Notice 216. As far as specific issues of access to networks in the electronic communications sector are concerned, the principles laid down in the relevant notice on the application of the competition rules should be applied.132


Access Notice, cited in footnote 2, in particular paragraphs 83-130.

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