The evolving essential facilities doctrine
Produced in partnership with Suzanne Rab
The evolving essential facilities doctrine

The following Competition practice note Produced in partnership with Suzanne Rab provides comprehensive and up to date legal information covering:

  • The evolving essential facilities doctrine
  • Essential facilities doctrine in a policy context
  • Bronner and the evolving EU case experience
  • Sealink/B&I Holyhead
  • European Night Services
  • Oscar Bronner
  • Applying the doctrine in practice
  • What is an essential facility?
  • To whom does access need to be given?
  • Is it necessary that the owner of the facility is also active in the downstream market?
  • More...

The 'essential facilities’ doctrine states that the refusal by a dominant company to grant assess to an essential facility that it controls constitutes an abuse of a dominant position if the refusal has significant restrictive effects on competition. Essential facilities typically include infrastructure such as an airport, port or energy transportation pipeline which is deemed essential for a competitor to compete in a downstream, related or neighbouring market.

There are specific issues arising in cases of refusal to license or grant access to intellectual property rights (IPRs) or propriety information which are not covered here.

Essential facilities doctrine in a policy context

The definition and scope of an 'essential facility' is difficult and often controversial. The basic principle is that an essential facility is typically something that is owned or controlled by a vertically integrated dominant company where independent companies need access to the facility in order to provide their own products or services.

The essential facilities doctrine has its origins in US antitrust law where it has been the subject of controversy. The European Commission first began to deploy the terminology in 1992 in the Sealink/B&I case (see below), although the Court of Justice has never formally used the term. However, a large part of the debate around the refusal to supply or the refusal to license has been expressed in terms of concepts which are very

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