The Essential Facilities Doctrine Before the European Community Courts: Ostracized or Expanded?

Abstract

The European Community Courts have in numerous instances applied Article 82 EC so as to hold unilateral refusals by dominant undertakings to supply goods or services, to allow access to facilities or to license intellectual property rights towards third parties as being abuses of those undertakings’ dominant position. Such abuses have come to fall within what is known as the doctrine of ‘essential facilities’, a doctrine explicitly articulated only in judgments of US courts and decisions of the European Commission. This article argues that, in the wake of the Microsoft Judgment of the Court of First Instance, the doctrine does not merely exist in European jurisprudence, but has indeed received a careful and sophisticated expansion on behalf of the Community Courts over the last three decades, regardless of the American judicature’s parallel approach. Following a brief revisit of the propositions expressed by Advocate-General Jacobs in his Opinion for the Bronner case, the article’s conclusions are extracted by comparatively applying the criteria established in the ECJ’s Judgment for the same case over landmark case-law of relevance, such as, inter alia, the preceding Commercial Solvents and Magill and the more recent IMS and Microsoft rulings.

Keywords: essential facilities, competition, European Union

JEL Classification: K21, K00, K42