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EUROPEAN COMMISSION DG Competition - page 98 / 113





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generate enough revenues to cover its costs.137 One element that may be relevant for reaching such a conclusion is the switching costs that customers would have to incur in order to use an alternative structure.138

Access to IPR may be indispensable 230. In the case of IPRs it must not be possible for competitors to turn to any workable alternative technology or to “invent around” the IPR. Such a requirement would likely be met where the technology has become the standard or where interoperability with the rightholder’s IPR protected product is necessary for a company to enter or remain on the product market.



  • 231.

    The fourth criterion is the likely negative effect on competition. The likely exclusion of one

individual competitor from the downstream market does not in itself constitute an abuse. An abuse only may arise when the exclusion of competitors is likely to have a negative effect on competition in the downstream market. This should however not be understood to mean the complete elimination of all competition. The extent to which the exclusion of one competitor has an impact on the level of competition depends on the pre-existing competition on the downstream market. In some cases, the exclusion of one competitor may have a detrimental effect on the level of competition; in other cases the impact may be small to insignificant. For

instance, if there are several competitors in the downstream market and the owner of the indispensable input is not itself active in that market, the impact on competition of the exclusion may be small unless the exclusion is likely to lead to collusion. It is more likely that there is a negative effect on competition on the downstream market if, for instance, the input owner is itself

active in the downstream market and excludes one of its few competitors.

Identity of excluded firm may be important 232. The identity of the excluded actual or potential competitor may be important for the assessment of the effect on the level of competition of the exclusion. The exclusion of a particular

137 Case 7/97 Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. K, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG [1998] ECR I-7791, paragraphs 43-46. See Case C-418/01 IMS Health, cited in footnote 129, paragraph 29. 138

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