The Austrian Supreme Court accepts a dominant undertaking’s refusal to deal as objectively justified (Penicillin G Sodium)

On 20 December, 2005, the Austrian Supreme Court ruled that a dominant undertaking`s refusal to supply a potential customer is objectively justified by lack of trust. This was due to the potential customer`s negotiation behaviour. Background Since 1999, Defendant has been the sole producer of Penicillin G Sodium within the EU. Moreover, only the Penicillin G Sodium produced by Defendant was registered under EU law and, therefore, allowed to be marketed in the EU. The production method of sterile Penicillin G Sodium is comparably simple, cheap and went off patent in 1965. Till 1999 Claimant purchased Penicillin G Sodium from a pharmaceutical company. In 1999, the latter stopped producing Penicillin G Sodium, leaving Defendant as the sole producer of the said product. Thereupon

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Rainer Palmstorfer, The Austrian Supreme Court accepts a dominant undertaking’s refusal to deal as objectively justified (Penicillin G Sodium), 20 December 2005, e-Competitions Bulletin December 2005, Art. N° 20494

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