Rethinking the Essential Facilities Doctrine for the EU Digital Economy

25 Pages Posted: 13 May 2019 Last revised: 16 Dec 2019

See all articles by Inge Graef

Inge Graef

Tilburg Law School; Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Tilburg Law and Economics Center (TILEC)

Date Written: April 4, 2019

Abstract

Although the essential facilities doctrine has not been applied recently anymore in EU competition enforcement, it is regularly referred to in EU policy discussions as a tool to open up markets in which ‘tech giants’ act as gatekeepers to consumers. Considering that the digital economy is not anymore driven by physical infrastructures, such as the bridges in the US Terminal Railroad case from which the essential facilities doctrine originates, other assets like data or rankings as the backbone of many digital markets may form the subject of essential facilities claims. Access to data or being ranked by an online platform can now be essential for businesses to compete in the market.

Against this background, the paper explores whether there should be more room for competition interventions under the essential facilities doctrine in the digital economy, considering market characteristics, as well as the recent Google competition cases seemingly bypassing the essential facilities doctrine, and legislative and policy developments regulating access outside EU competition law. It is put forward that the essential facilities doctrine should be rethought in order to be effectively applied in the EU digital economy, in particular by aligning its application with the underlying economic interests.

Keywords: Competition law, access to data, rankings, self-preferencing, disruptive innovation, competition for the market

Suggested Citation

Graef, Inge, Rethinking the Essential Facilities Doctrine for the EU Digital Economy (April 4, 2019). TILEC Discussion Paper No. DP2019-028, Available at SSRN: https://ssrn.com/abstract=3371457 or http://dx.doi.org/10.2139/ssrn.3371457

Inge Graef (Contact Author)

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

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