
Contents
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A. Introduction A. Introduction
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B. The consumer harm test in vertical foreclosure B. The consumer harm test in vertical foreclosure
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(1) The concept of vertical foreclosure (1) The concept of vertical foreclosure
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(2) Refusal to supply (2) Refusal to supply
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(a) The problem of balancing investment incentives and competitive harm (a) The problem of balancing investment incentives and competitive harm
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(b) Indispensability (b) Indispensability
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(c) Intensity of the exclusionary effect (c) Intensity of the exclusionary effect
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(d) Raising rivals' costs (d) Raising rivals' costs
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(e) Clarifying the consumer harm test in refusal to supply (e) Clarifying the consumer harm test in refusal to supply
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(f) Refusal to supply an existing customer (f) Refusal to supply an existing customer
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(3) Margin squeeze as a vertical foreclosure strategy (3) Margin squeeze as a vertical foreclosure strategy
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C. Exploitative abuses C. Exploitative abuses
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(1) The need for limiting principles (1) The need for limiting principles
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(2) Enhanced dominance test (2) Enhanced dominance test
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(3) Enhanced consumer harm test (3) Enhanced consumer harm test
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(4) Post-exclusionary exploitation test (4) Post-exclusionary exploitation test
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D. Consumer harm as the default test for exclusionary abuses D. Consumer harm as the default test for exclusionary abuses
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E. Conclusion E. Conclusion
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Cite
Abstract
The consumer harm test asks whether the conduct of the dominant undertaking results in higher prices, lower output, or reduced product innovation. The test is not necessarily the manifestation of a consumer welfare objective of the competition rules but is consistent with the achievement of long-term social welfare. Therefore, the test may be applied under Article 102 even if this provision does not aim at maximizing some measure of consumer welfare but long-term social welfare. This chapter examines the consumer harm test in vertical foreclosure, focusing on refusal to supply and the margin squeeze. Next, it discusses the exploitative abuse test, which requires actual consumer harm. Then, it analyses the possibility that consumer harm may be the default test under Article 102 for practices that do not follow under other tests either directly or by analogy. Finally, conclusions are drawn.
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