1. Meaning

Rare Species Access Restrictions refer to contractual, regulatory, commercial, or technological restrictions that prevent competitors, researchers, downstream businesses, conservation enterprises, or other market participants from obtaining access to a scarce or uniquely valuable biological species, genetic resource, breeding stock, plant variety, animal stock, or associated biological material.

From a competition-law perspective, the problem arises where a firm, consortium, institution, landowner, breeder, supplier, conservation operator, or platform has substantial control over a scarce biological resource and uses that control to restrict competitors or foreclose downstream markets.

Examples include:

• an exclusive agreement giving one pharmaceutical company access to a rare medicinal plant;
• a dominant breeder refusing to supply a rare animal breed to competing breeders;
• exclusive control over a genetically unique seed variety;
• restrictions on access to rare marine organisms used for biotechnology;
• a conservation facility granting exclusive commercial access to a rare species;
• refusing competitors access to breeding stock;
• discriminatory allocation of a scarce genetic resource;
• tying access to the species to unrelated services;
• imposing excessive or discriminatory access conditions;
• licensing restrictions preventing independent research or commercial development.

The competition issue is not simply that the species is rare. The central question is whether control over the scarce resource gives an undertaking market power and whether the restriction produces an appreciable exclusionary or exploitative effect.

2. Why Rare Species Can Create Competition Concerns

Rare biological resources can possess characteristics resembling an essential or bottleneck input.

A resource may be particularly important where:

1. substitutes are unavailable or very limited;
2. obtaining another population would take many years;
3. reproduction is difficult;
4. the resource has unique genetic characteristics;
5. regulatory approval makes substitution difficult;
6. access requires a particular geographic location;
7. conservation restrictions limit collection;
8. the resource is protected by intellectual-property rights;
9. the resource is controlled by one undertaking or a small group; or
10. downstream products cannot practically be produced without it.

Consequently, exclusion from the resource can potentially exclude competitors from an entire downstream market.

3. Forms of Rare Species Access Restrictions

A. Exclusive Supply Agreements

A supplier may agree to provide a rare species or biological material exclusively to one downstream undertaking.

Example

A company obtains exclusive access to a rare medicinal plant and prevents the supplier from selling the plant to competing pharmaceutical manufacturers.

The arrangement becomes particularly problematic where the company has substantial market power and the exclusive arrangement covers a significant proportion of available supply.

B. Refusal to Supply

A dominant resource holder may simply refuse to provide access.

For example:

A biotechnology company controls virtually all commercially available specimens of a rare microorganism and refuses to provide samples to competing laboratories.

A refusal to deal is not automatically unlawful. Competition law generally requires additional conditions such as dominance, indispensability, elimination of effective competition and lack of objective justification.

C. Discriminatory Access

Access may technically be available but offered on different terms.

For example:

Such differential treatment can raise concerns where it lacks objective justification and disadvantages competing undertakings.

D. Geographic Access Restrictions

A firm controlling a unique population may prevent competitors from accessing the geographic location where the species exists.

This can become important where:

• the species exists only in one habitat;
• the firm controls the relevant land or facility;
• relocation is impractical;
• artificial breeding is unavailable.

E. Breeding-Stock Restrictions

A breeder may control a rare genetic lineage and refuse to sell breeding specimens to competitors.

The restriction can be particularly significant when:

• the genetic lineage is unique;
• reproduction requires access to existing breeding stock;
• alternative genetic material is unavailable;
• the controlling breeder competes downstream.

F. Research-Access Restrictions

A dominant undertaking may limit access to biological material for scientific or commercial research.

This raises difficult questions because legitimate conservation and research restrictions must be distinguished from strategic exclusion.

4. Relevant Market

Market definition is especially important.

A rare species itself does not necessarily constitute a relevant market.

The analysis may instead concern:

Upstream market

Market for access to a particular biological resource

or

Downstream market

Market for products developed from that biological resource.

For example:

Rare medicinal plant → extracted compound → pharmaceutical product.

The competition authority may need to examine whether alternative plants, synthetic compounds, other genetic resources, or different technologies provide meaningful substitutes.

5. Essential-Facility / Refusal-to-Deal Analysis

Rare species access restrictions frequently resemble essential-facility cases, although the terminology should be used cautiously.

The traditional questions include:

1. Is the resource indispensable?
2. Is there a realistic substitute?
3. Can competitors reproduce or obtain the resource elsewhere?
4. Does the owner possess substantial market power?
5. Does refusal eliminate or substantially restrict competition?
6. Can access technically be provided?
7. Is there an objective justification?
8. Would mandatory access undermine legitimate conservation obligations?

The conservation question is particularly important.

A competition authority should not automatically require unlimited commercial access to an endangered species merely because access would assist competitors.

6. Important Case Laws

1. United Brands v Commission

Case 27/76, United Brands Company and United Brands Continentaal BV v Commission (1978)

Principle

The European Court of Justice examined the conduct of a dominant undertaking controlling a significant commercial market and emphasized the importance of identifying the relevant market, dominance and abusive conduct.

United Brands involved bananas rather than rare biological species, so it is an analogous rather than species-access case.

Relevance

The case is useful because rare biological resources may create a narrowly defined market where consumers or downstream businesses cannot easily substitute another resource.

The lesson is that market power must be assessed by reference to:

• substitutability;
• consumer demand;
• supply conditions;
• competitive constraints.

7. Commercial Solvents v Commission

Joined Cases 6/73 and 7/73, Commercial Solvents v Commission (1974)

Facts

Commercial Solvents occupied a dominant position in the market for certain chemical raw materials and was also active in downstream markets.

It refused to supply an existing customer that competed with its downstream business.

Principle

A dominant undertaking controlling an upstream input cannot necessarily use that control to eliminate competition in a downstream market.

Relevance to rare species

Suppose:

Company A controls the only commercially usable population of a rare microorganism and also manufactures products derived from it.

If A refuses to supply the microorganism to downstream competitors for the purpose of protecting its own downstream products, the Commercial Solvents principle becomes highly relevant.

This is one of the strongest analogies for vertically integrated control of a scarce biological input.

8. Oscar Bronner v Mediaprint

Case C-7/97, Bronner v Mediaprint (1998)

Principle

The Court established a demanding standard for compelling a dominant undertaking to provide access to infrastructure or resources.

The facility must essentially be indispensable, in the sense that there is no actual or potential substitute and duplication is not realistically possible.

Relevance

This principle is particularly important for rare species.

A competitor should not automatically obtain access merely because:

• the species is valuable;
• the dominant firm has access;
• access would make competition easier.

The competitor would generally need to establish something approaching indispensability.

For example, if five alternative species can provide the same commercial input, compulsory access to one rare species is much harder to justify.

9. IMS Health v Commission

Case C-418/01, IMS Health GmbH & Co. OHG v NDC Health (2004)

Principle

The case concerned refusal to license an intellectual-property-protected system and developed the restrictive conditions under which refusal to license can constitute abuse.

The Court identified circumstances involving:

• indispensability;
• elimination of competition;
• prevention of a new product for which consumer demand exists;
• absence of objective justification.

Relevance

Rare biological resources often intersect with intellectual property.

For example:

A company controls a unique genetic database and associated proprietary breeding technology necessary to exploit a rare species commercially.

The IMS Health reasoning helps distinguish legitimate proprietary control from exclusionary conduct.

10. Magill TV Guide

Joined Cases C-241/91 P and C-242/91 P, RTE and ITP v Commission (1995)

Principle

The case concerned refusal to license copyright-protected information.

The Court accepted that exceptional circumstances can make refusal to license an intellectual-property right abusive.

Important considerations included:

• the information was indispensable;
• refusal prevented the emergence of a new product;
• there was no justification;
• the refusal reserved a downstream market to the rights holder.

Relevance

Rare species disputes may involve:

• genetic information;
• genomic databases;
• breeding information;
• proprietary biological data;
• associated IP.

Where control over such information effectively prevents competitors from developing innovative downstream products, the Magill framework can become relevant.

11. Microsoft v Commission

Case T-201/04, Microsoft Corp. v Commission (2007)

Principle

The General Court upheld the Commission's approach to Microsoft's refusal to provide interoperability information.

The case is important for situations in which control over an input or technical interface prevents competitors from operating effectively.

Relevance

The analogy extends beyond physical species.

A company might control:

• a rare species;
• its genetic information;
• a proprietary breeding database;
• access protocols;
• biological compatibility information.

If competitors require that information to compete effectively and the information is not reasonably reproducible, restrictions may create foreclosure concerns.

Microsoft therefore provides a useful bottleneck/interoperability analogy.

12. Sea Containers v Stena Sealink

Commission Decision 94/119/EC, Sea Containers v Stena Sealink (1994)

Principle

The European Commission considered access to essential port infrastructure controlled by an undertaking that was also active in downstream services.

The case addressed discriminatory treatment and the ability of an infrastructure controller to disadvantage competitors.

Relevance

Although this was a port case rather than a biological-resource case, the structural analogy is valuable:

bottleneck resource → controller → downstream competitor.

A rare-species access facility could operate similarly.

For example, if one company controls the only viable captive-breeding facility for a rare species while competing in the downstream market, discriminatory access could create a comparable foreclosure problem.