THE ESSENTIAL FACILITIES DOCTRINE UNDER ART. 82: WHAT IS THE STATE OF AFFAIRS AFTER IMS HEALTH AND MICROSOFT?

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Abstract:

This paper intends to contribute to the debate on refusals to deal under Article 82 EC, also in the context of IP rights. In the wake of the Commission's Microsoft decision, it appears that neither the general principles on essential facilities, nor the specifically IP-related new product criterion are capable of fully addressing the issues at stake. While the prevention of the emergence of a new product may constitute an abuse in its own right, a cumulative application of the principle together with the exclusion of competition on a secondary market and the lack of an objective justification considerably tightens the standard for the abusiveness of a refusal to grant access to intellectual input. More generally, the paper clarifies the analytical preconditions for the analysis of all refusals to deal, especially the existence of two separate – albeit connected – markets, and suggests an approach that draws from the telos of Article 82 in asking whether a refusal to deal can be justified if an essential facility is essentially a manifestation of performance-based competition, directed to a secondary market. In that respect, material and immaterial property do not differ in value and should be treated alike.
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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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