The EU essential facilities doctrine. Research Papers in Law, 6/2006

Introduction. The essential facilities doctrine may be seen as the ‘extra weight’ which is put onto the balance, in order to give precedence to the maintenance of competition over the complete contractual freedom of undertakings controlling an important and unique facility. The main purpose of the doctrine is to impose upon such ‘dominant’ undertakings the duty to negotiate and/or give access to the facility, against a reasonable fee, to other undertakings, which cannot pursue their own activity (and therefore will perish) without access to such a facility. This very simple description of the content of the doctrine underlines its limitations: through the imposition of a duty to negotiate or contractual obligations, the rule tends to compensate for the weaknesses of the competitive structure of a market, which are due to the existence of some essential facility. In other words, the doctrine does not by itself provide a definitive solution to the lack of competition, but tends to contractually maintain or even create some competition.1 The doctrine of essential facilities originates in the US antitrust case law of the Circuit and District Courts, but has never been officially acknowledged by the Supreme Court. It has been further developed and hotly debated by scholars in the US, both from a legal and from an economic viewpoint. In the EU, the essential facilities doctrine was openly introduced by the Commission during the early 1990s, but has received only limited and indirect support by the Court of First Instance (the CFI) and the European Court of Justice (the ECJ). It also indirectly inspired the legislation concerning the deregulation of traditional ‘natural’ monopolies. The judicial origin of the doctrine, combined with the hesitant application by the appeal courts, both in the US and the EU, cast uncertainty not only on the precise scope of the doctrine, but also on the issue of its very existence. These questions receive a particular light within the EU context, where the doctrine is called upon to play a different role from its US counterpart. In order to address the above issues, we will first pretend that an EU essential facility doctrine does indeed exist and we shall try to identify the scope and content thereof, through its main applications (Section 1). Subsequently, we will try to answer the question whether such a doctrine should exist at all in the EU (Section 2).

The Commissioners’ Group on External Action – Key political facilitator. CEPS Special Report No. 125/December 2015

The reactivation of the Commissioners’ Group on External Action (CGEA) is one of the most important institutional initiatives in EU foreign policy-making since the merger of the position of the High Representative for CFSP with that of Vice-President of the Commission and the creation of the European External Action Service. In this report the authors examine the mandate and organisation of the CGEA and note that, in its first year of activity, the Group has injected much-needed political pragmatism into the way the Commission contributes to EU external action, thereby facilitating inter-service cooperation both within the Commission and with the EEAS. They argue that the CGEA has in fact become the logical counterpart to the Foreign Affairs Council, which allows the HRVP to deliver on her duty to assist the Council and the Commission in ensuring a comprehensive approach to EU external action, as indeed consistency in its implementation.