The Essential Facilities Doctrine Under Scrutiny: EU and US Perspective
UEA Law Working Paper No. 2011-AM-1
41 Pages Posted: 12 Jan 2011
Date Written: January 11, 2011
The essential facilities doctrine requires a monopolist or a dominant firm to provide access to a facility that the monopolist controls and that is deemed necessary for effective competition. The doctrine has received considerable attention by competition lawyers and economists on both sides of the Atlantic. This essay seeks an answer to the existence of the so called “essential facilities doctrine”. This question will be addressed by highlighting the development and the application of the doctrine in the US and the EU. It then brings to light some observations and consequences on the application of the doctrine. Furthermore, it considers the application of the doctrine in regulated industries and more generally the application of competition law where regulators are present in a given industry. This essay concludes that the doctrine does exist. It also offers a suggested test for the application of the doctrine.
Keywords: Competition Law, refusal to supply, Article 102 TFEU, Section 2 Sherman Act, Essential Facilities Doctrine, abuse of dominance, monopolisation
JEL Classification: K21, L41, L43
Suggested Citation: Suggested Citation