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EUROPEAN COMMISSION DG Competition - page 97 / 113

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Article 81 infringed only if refusal by dominant company 226. A refusal to start supplying can only raise competition problems if the undertaking refusing to supply has a dominant position on a defined market. This will often be an “upstream” input market, but it may also be a distinct market where access is needed to link this market with another market, for example to interface information.135

Hypothetical or potential market 227. In some circumstances, there may not be an existing market for the input in question as it is used only by the owner in a captive market. For example, an IPR may be nothing more than an input that is not marketed separately from the goods and services to which the IPR relates. However, it is sufficient that a captive market, that is, a potential market, or even a

hypothetical market, can be identified. Such is the case where there is actual demand for the input on the part of undertakings seeking to carry out the activity for which the input is indispensable.136

        • 9.2.2.3

          INDISPENSABILITY

  • 228.

    To be an abuse the refusal to start supplying must concern an input, which is indispensable

to carry on normal economic activity in the downstream market. Without this input companies cannot manufacture their products or provide their usual service levels. Therefore, when real or potential substitutes exist in the market, the input of the dominant company is not indispensable.

The same holds if it would be legally and economically possible for other companies to produce the input in question themselves.

Indispensable narrowly defined 229. A facility is an indispensable input only when duplication of the existing facility is impossible or extremely difficult, either because it is physically or legally impossible to

duplicate, or because a second facility is not economically viable in the sense that it would not

135 136

COMP/C-3/37.792 (Microsoft) Commission Decision of 24.03.2004. Case C-418/01 IMS Health, cited in footnote 129, paragraph 44.

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