Refusal to Supply Jurisprudence in European Competition Law since Oscar Bronner
| Author | Edmond O'Hanlon |
| Position | Senior Sophister LLB Candidate, Trinity College Dublin |
| Pages | 156-165 |
'REFUSAL
TO
SUPPLY'
JURISPRUDENCE
IN
EUROPEAN
COMPETITION
LAW SINCE
OSCAR
BRONNER
EDMOND
O'HANLON*
This note
is
intended
to
provide
an
overview
of
the
essential
facilities
doctrine' and 'refusal
to
supply'
jurisprudence
2
of
European
Community
Competition
policy
since
the
decision
in
Oscar Bronner'
The
Bronner
decision
was
significant
in
that
it
reined
back
the
EFD
in
European
competition
law.
The case
concerned
an
Article 234
reference
4
in
which Mr.
Bronner,
a
newspaper
publisher,
argued that
a
newspaper
distribution
system
should
be
regarded
as
an
essential
facility.
Bronner
lacked
the
ability
to
establish
a
competing system,
and argued
that
a
rival
publisher's
refusal
to
distribute
Bronner's
newspaper
should
be
regarded
as
an
abuse
of
a
dominant
position.
Both Advocate
General Jacobs and
the
European Court
of
Justice
denied Mr.
Bronner
relief.
The
Advocate
General stated
that
the
purpose
of
Article
82 is
to
protect
consumers
and
not
competitors.'
Interestingly,
he
Senior
Sophister
LLB
Candidate, Trinity
College
Dublin.
Hereinafter referred
to
as
the EFD.
An
essential facility
is
one
which
undertakings
require
access
to in
order
to
produce
goods or
provide
services to their customers,
but
which
they
could not
reproduce themselves without prohibitive
expense or inordinate
delay.
A
refusal
to
supply
is
abusive
if
not
objectively
justified
by
some
proportionate
benefit
to
the competition
structure.
2 Capaobianco,
"The
Essential
Facility Doctrine:
Similarities and Differences
between
the
American
and
the European
approach"
(2001) 26
ELRev
548.
Capaobianco
submits
that
the
EFD,
as
stated
by
the
Commission,
may
be
viewed
as
a
mere refinement
of
refusal
to
supply
cases.
3
Oscar
Bronner
GmbH
v.
Mediaprint
Zeitungs
und
Zeitschrifien
Vertag
GmbH
und
Co.
KG
und
Ors
[1998]
ECR
1-7991,
hereinafter
'Bronner'.
4
An
Article
234
reference
is
a
mechanism
under
which
a
national
court
can
refer
a
matter
to
the
European Court
of
Justice
for
a
determination
on
its
compatibility with
Community
law.
5
Article
82
provides
a
non-exhaustive
list
of
abusive conduct, including
unfair
trading
conditions, which
put
other
parties
at
a
competitive
disadvantage,
and
supplementary
obligations
in
contracts which
have
no
connection
with
the
subject
of
such contracts.
Article
82
states:
Any abuse
by one
or
more
undertakings
of
a
dominant
position
within
the
common
market
or
in
a
substantial part
of
it
shall
be
prohibited
as
incompatible with
the
common
market
insofar
as
it
may affect
trade
between Member
States.
©
2006
Edmond
O'Hanlon
and
Dublin University
Law
Society
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