Necessity test Clause Samples
Necessity test. Under the necessity test, sometimes referred to as the 'indispensability' test, a dominant firm must use the least anti-‐competitive means to reach its professed goal. Various authors, such as ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇▇▇, appear to attach much weight to the necessity test.564 The value of the necessity test for 563 Even though such conduct may have wider benefits. 564 ▇▇▇▇▇▇▇▇▇▇ 2005, supra note 332, at 466. See also ▇▇▇▇▇▇▇▇▇▇▇▇▇ 2005, supra note 339, at 172-‐173. objective justification is not apparent from early case law such as United Brands. The ECJ held that, in principle, the dominant firm is at liberty to decide what type of action it carries out as part of a commercial ‘counter-‐attack’ vis-‐à-‐vis its competitors.565 The judgment does not include a requirement to choose the least anti-‐competitive means. In addition, the ECJ seemed to create a link between the principle of proportionality and ‘the economic strength of the undertakings confronting each other’.566 This does not seem to refer to a necessity test, but rather a requirement to abstain from certain conduct depending on the degree of dominance. Such a test is compatible with a concept of dominance that is not black and white but more akin to a sliding scale (as suggested in section 2.2). However, the case law seems to have made a gradual shift with an increased focus on the necessity test.567 Tetra Pak II can be interpreted as an early indication that a necessity test should be performed. In that case, the General Court was unconvinced that the protection of public health – the professed goal of the prima facie abuse – could not be guaranteed by other means.568 Later, in British Airways, the ECJ established the necessity criterion more firmly: ‘If the exclusionary effect of [a rebate] system […] goes beyond what is necessary in order to attain [efficiency] advantages, that system must be regarded as an abuse.’569 The same emphasis on the necessity test is apparent from the Commission decision in Microsoft.570 For its part, the ECJ firmly established the necessity test as one of the legal conditions in Post Danmark.571 A way to reconcile British Airways, Microsoft and Post Danmark on the one hand; and United Brands on the other hand is by considering the different types of objective justification that were at play. In the former cases, the dominant firm invoked an efficiency plea. In such a balancing exercise it is 565 United Brands, supra note 417, para 189. 566 Ibid., para 190. 5...