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Part III Tests of Abuse, 8 The Consumer Harm Test

From: The Foundations of European Union Competition Law: The Objective and Principles of Article 102

Renato Nazzini

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 22 June 2021

Article 102 TFEU — Quantifying harm — Intellectual property rights (IPR)

This chapter studies the consumer harm test. 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. The chapter then looks at the consumer harm test in vertical foreclosure, focusing on refusal to supply and margin squeeze. Proof of consumer harm is required in all vertical foreclosure cases and not only when the refusal to supply relates to intellectual property rights.

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