DISPENSING WITH INDISPENSABILITY

Niamh Dunne

Journal of Competition Law and Economics, 2020, vol. 16, issue 1, 74-115

Abstract: ‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under Article 102 TFEU. Since its adoption in Magill and Bronner, however, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article surveys the departures from the orthodoxy that can be found in the jurisprudence. In doing so, it measures the purported explanations for such derogations against the justifications for restraint encapsulated in the indispensability concept. Finally, it asks whether the weight of exceptions may reach the point of overwhelming, or ‘dispensing with,’ the original rule.

Date: 2020
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Journal of Competition Law and Economics is currently edited by Nicholas Economides, Amelia Fletcher, Michal Gal, Damien Geradin, Ioannis Lianos and Tommaso Valletti

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