Indispensability and Abuse of Dominance: From Commercial Solvents to Slovak Telekom and Google Shopping

Extract

I. Introduction

In certain circumstances, Article 102 TFEU can only be triggered if an authority (or claimant) is able to show that access to a given input (or platform) is indispensable for competition on a neighbouring market. The indispensability threshold is difficult to meet in practice. A claimant or authority would need to show that there are no ‘alternative solutions’ (even if less advantageous) to the said input (or platform), and that duplicating it would be ‘impossible or unreasonably difficult’.¹ The circumstances in which indispensability is an element of the legal test, on the other hand, are not clear. Scenarios of exclusion in which this condition is required to establish an abuse—such as an outright refusal to start dealing with a would-be rival—are not always easy to distinguish from instances in which the Court of Justice (hereinafter, the ‘Court’ or the ‘ECJ’) held that it is not, such as a ‘margin squeeze’. To complicate matters, there is a ‘grey area’ that does not fall neatly into pre-existing legal categories. One could reasonably conclude, in relation to ‘grey area’ conduct, that indispensability is an element of the test; one could come, equally reasonably, to the opposite conclusion.