Refusal to Supply Jurisprudence in European Competition Law since Oscar Bronner
![handle is hein.journals/trinclr9 and id is 166 raw text is: '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' jurisprudence2 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 reference4
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 Case C-7/97 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](ViewImageLocal?handle=hein.journals/trinclr9&div=14&collection=&method=preview&ext=.png&size=3)
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Refusal to Supply Jurisprudence in European Competition Law since Oscar Bronner
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