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).

EPC Special Collection. Juncker’s Investment Package: essential background reading, 27 November 2014. Collection of papers recently published by the European Policy Centre reflecting on current social, political and economic affairs

This special collection combines the latest publications written by our experts on Europe's investment future. In chronological order, this package follows the developments of how European investment has been dealt with, and what would be needed to make for a more ambitious plan.

An essential partner in the background. Europe in China's policy during the rule of Xi Jinping. OSW STUDIES 56 2016

Chinese elites do not treat Europe as an equal partner and are convinced that China holds the upper hand over Europe. They see a growing asymmetry in bilateral relations. China’s sense of its own potential is boosted by internal divisions within the European Union. At the same time, Europe is China’s key economic partner and an ‘economic pillar’ supporting China’s growth on the international stage. Beijing strives to maintain Europe’s open attitude towards the Chinese economy, in particular its exports, technology transfer to China, location of investments and diversification of China’s currency reserves. Cooperation with Europe and support from Europe are necessary to enable China to improve its position in the international economic and financial system, mainly in order to legitimise China’s actions in the area of multilateralism and global governance. Similarly, Beijing attaches great importance to maintaining Europe’s non-involvement in two issues: China’s core interests and Chinese-American relations.