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Commercial Solvents (ECJ)

Court of Justice of the European Communities
Cases 6/73 and 7/73, ICI and Commercial Solvents v Commission
[1974] ECR 223, [1974] 1 CMLR 309
Judgment of 6 March 1974 available online from EUR-Lex

Article 82: exclusionary abuse
Article numbers refer to the 1997 consolidated version of the EC Treaty.

Commercial Solvents is an Article 82 case (at the time, Article 86) in the chemical industry, in which a manufacturer of a raw product was found to have abused a dominant position by refusing to continue to supply a downstream competitor.

Refusal to supply / refusal to deal

Commercial Solvents is an example of a refusal to supply abuse.

It is related to cases such as Magill, Bronner and IMS Health relating to "essential facilities", where the holder of a dominant position in a service which is essential to supply another market uses that dominant position to reserve that other market to itself and prevent the supply by others of a new product for which there is customer demand.

However, the abuse in Commercial Solvents is best described as the unfair elimination of all competition from a specific existing competitor by denying that competitor access to a facility that is essential for it.

In the Commercial Solvents case, elimination of all competition from one competitor probably amounted to elimination of competition altogether; but this does not mean that elimination of competition is a necessary part of the Commercial Solvents abuse, as is apparent from the words "on the part of this customer" at paragraph 25 of the judgment:

"[...] an undertaking which has a dominant position in the market in raw materials and which, with the object of reserving such raw material for manufacturing its own derivatives, refuses to supply a customer, which is itself a manufacturer of these derivatives, and therefore risks eliminating all competition on the part of this customer, is abusing its dominant position [...]"

The following articles on Reckon Open comment on refusal to supply issues:

Market definition in dominance cases

Also of note in the judgment is the step-by-step method of analysis of abuse set out at paragraph 8:

"8. It is necessary therefore to examine in turn the questions
(a) whether there is a dominant position within the meaning of Article 82,
(b) which market must be considered to determine the dominant position,
(c) whether there has been any abuse of such a position,
(d) whether such abuse may affect trade between Member States

This is a useful reminder that the modern idea of market definition as a first step in the assessment of dominance may not be a universal principle, and that market definition can alternatively be seen as an analytical step undertaken after a dominant position has been established in order to ascertain the particular products and geographical area over which the dominant position is held.

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Last changed by Richard at 4:39 PM on Thursday 11 August 2011.

Reference for this page:
Reckon Open "Commercial Solvents" 2011-08-11T16:39:43
Link within Reckon Open: [[Commercial Solvents]]