“Potential” Downstream Markets in European Antitrust Law: A Concept in Need of Limiting Principles

John Temple Lang, Dec 22, 2011

Under European Union competition law, a dominant company has a duty to provide important inputs to its competitors. The leading cases involved vertically integrated dominant companies, which operated both harbors and car ferry companies. They were ordered to give access to their downsteam competitors, the other car ferry companies that needed access to the harbors. In these cases it was clear that there were two markets: a market for the supply of harbor services to ferry companies, and a separate market for the supply of ferry services to travelers. If all the other conditions for a duty to contract are fulfilled, the dominant company cannot avoid the duty merely by arguing that it has never granted access before. This led to the statement that it is enough if there is a “potential market” for the supply of the input in question by the dominant company, if the other conditions are fulfilled.

This phrase has led to arguments by competitors requesting one of several products sold only in combination by the dominant company, or one specific input out of the dominant company’s integrated operations, or the dominant company’s principal competitive advantage. In some cases competitors have claimed the right to use the dominant company’s intellectual property rights, to produce or use the dominant company’s products. In all these cases one important question is whether there is in any sense a “market” for an input that is used by the dominant company in t…


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