CLIP of the month: Indispensability as a test for abuse?

27.03.2020

This month’s Clip of the month is an article (and blog) by Pablo Ibanez Colomo about the vexed question of the relationship between indispensability and various legal obligations under Article 102 TFEU (including when reviewing alleged refusals to supply).  You can find the article here and the accompanying blog here.

Such issues come up in all sorts of contexts. When dealing with Intellectual Property Rights, the question of whether there is an obligation to deal arises most often in refusal to license disputes and cases such as Magill and IMS Healthcare are the most frequently cited authorities. Indispensability of access to the underlying right or product is a core part of the legal test for establishing an obligation to  deal under Article 102 TFEU and in practice it is common for the analysis to focus first on whether there has been an actual or constructive refusal to supply before turning to the question of whether or not a particular good, service or right (such as a patent) is indispensable.

Mr Colomo’s  article looks at the role of ‘indispensability’ from a slightly different angle arguing that the test of indispensability is relevant to many cases other than pure refusal to deal scenarios. He suggests that indispensability  of an underlying good , service or right should be a core part of the legal assessment in any case where the appropriate remedy is likely to be a change to commercial conduct that involves granting access to property, or transferring assets, to a third party. In his view, it is appropriate and sensible to work  backwards from the appropriate remedy to assess whether a criterion of indispensability forms a crucial part of the legal test for abuse.  Mr Colomo goes back to the well-known Ice Cream case (Van den Bergh Foods) to make his point.

The article is particularly focussed on the implications of this approach for a case like Google Shopping where the decision did not  find a refusal to deal and where the remedy was an order that Google should bring the infringement to an end without specifying precisely what the remedy should be. Mr Colomo asks whether, in such cases, where the actual effective remedy may involve the grant of access on particular terms, indispensability should form a part of the legal test for a finding that the underlying conduct infringed Article 102.

Without giving too much away,  Mr Colomo suggests that precedents mean that this must be the case, as any other approach would favour form over substance. The article and blog are well worth a read for anyone interested in this tricky area of the application of Article 102 and relevant factors when considering which test to apply in deciding whether an abuse has or has not occurred.

By way of full disclosure, we should mention that Bristows LLP has acted (and continues to act) for Google on various matters, but not in the Commission or General Court Proceedings mentioned by Mr Ibanez-Colomo.

Pat Treacy

Author