Page 72 - Azerbaijan State University of Economics

STUDYING OF SPECIAL PRACTICAL ISSUES OF ABUSE OF DOMINANCE

In De Montis Catering Roma v. Aeroporti di Roma, a state-owned

company controlling the Rome airport and having an exclusive license to
provide maintenance and ground services denied access to the airport

premises to a company wishing to compete for airline catering, a service in

which the licensee had a de facto monopoly but which was not covered by its
exclusive rights. The Italian Antitrust Authority found no justification for the

refusal and Aeroporti di Roma was charged with trying to extend its
monopoly power in a related market and with hindering competition and

damaging users of catering services because of higher prices and lower
quality of services supplied by the airport to airlines.

In general, to assess abuse in cases of refusal to deal it is necessary to

look at: the market power of the firm, the rationale for the refusal, and the
resulting competitive harm. As always, it is critical to properly define the

relevant markets. If the relevant downstream market is such that the shut-out

firm can sidestep the refusal and still be a competitor, the refusal to deal
cannot be anticompetitive. Even when this is not possible, it may be that the

facility could be duplicated at reasonable cost in a reasonable time.
Especially in refusal to deal cases, competition agencies should be

careful not to mistake injury to competition with injury to individual
competitors. Orders requiring firms to provide mandatory access to “essential”

facilities should be sought only when the benefits of providing such access

clearly outweigh the costs. Thus competition authorities should avoid
embracing an excessively broad “essential facilities doctrine,” that is, routinely

compel firms to deal with rivals, which often benefits competitors but not
competition. Indeed, competition agencies that regularly impose on large firms

a duty to deal with competitors run a serious risk of discouraging firms from
investing in new goods and services for fear that they could not earn an ade-

quate return.

71