Protection Of Investments In European Abuse Of Dominance Cases

December 2008
European Competition Law Review
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A reverse tendency can be observed in the European abuse of dominancepractice: while in the case of tangibleassets there is an attempt to establish a transitory exemption from competition law – a sort of temporary exclusivity -, with respect to intangible assets there is a move away from this periodic exclusivity as the IPR that provides such exemption is gradually eroded through competition law enforcement. Therefore, unsurprisingly, the protection of investment in the European abuse of dominant cases has become a hot issue by the Microsoft case, where the interest in maintaining development of a whole economic sector has come into conflict with the protectionof individual innovations.

However, the goal is clearly recognized: "a duty under Article 82 EC for a dominant undertaking […] should not be assumed too lightly and refusal to supply a competitor is not automatically considered abusive just because the inputs in question are necessary to compete on a secondary market." Therefore, "a balance should be kept between the interest in preserving or creating free competition in a particular market and the interest in not deterring investment and innovation by demandingthat the fruits of commercial success be shared with competitors." Only striking the proper balance seems to be difficult. This article intends to give an overview of how European competition law tries to address this problem in the so-called 'refusal to deal' cases.