The element of indispensability in margin squeeze : is it a must?

Abstract

A margin squeeze occurs whenever a vertically integrated undertaking dominant on the upstream market for an input sells that input to its downstream competitor at a price which does not allow it to operate profitably. Initially, margin squeeze was considered a constructive refusal to supply and as such acquired an abusive character if and only if the Bronner criteria, including the indispensability element, were met. In 2010, the Court of Justice departed from this original stance, affirming that margin squeeze constitutes a self-standing abuse. At first, the indispensability element retained its mandatory status, however was eventually reduced to a non-essential requirement. This dissertation deeply analyses whether indispensability should constitute an essential pre-requisite for the stand-alone abuse of margin squeeze. Chapter 1 examines the evolution of margin squeeze under European Union law with particular attention being made to the indispensability requirement. The chapter begins by exploring the earliest decisions and judgements related to margin squeeze. Thereafter it examines the Commission Guidance Paper which reflects the aforementioned original position as well as contemporary jurisprudence which led to the current broad margin squeeze approach. Chapter 2 thoroughly scrutinises the significance of indispensability within the context of margin squeeze. Amongst other matters, it looks at the economics of margin squeeze, examines the effects of rendering indispensability non-essential and determines whether this decision truly promotes the effectiveness of Article 102 TFEU. The conclusion of this dissertation draws together all the arguments made in the foregoing chapters and determines whether the element of indispensability is a must within the context of the stand-alone abuse of margin squeeze.