The future of refusals to deal and margin squeezes in the face of sector-specific regulation

The relationship between refusals to deal and margin squeezes in EU competition law is complex and controversial. Although the underlying competition concerns are often similar, the legal standards to hold the two practices abusive under Article 102 TFEU are different – unlike the situation in US antitrust law. The chapter submits that the distinction between refusals to deal and margin squeezes is increasingly difficult to make in relation to newer practices, such as self-preferencing and preferential access to data. Instead of letting the applicable legal test under Article 102 TFEU depend on whether the conduct qualifies as an outright or constructive refusal to deal, the chapter suggests using the existence of a regulatory duty as the main determining factor for whether the strict Bronner criteria apply. To provide a more nuanced approach towards the assessment of indispensability, the chapter proposes to tailor its application to the market situation at stake.