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).

Avainhyödyke doktriinin kehitys ja soveltaminen Euroopan yhteisön kilpailuoikeudessa

Tutkielmassa tarkastellaan avainhyödyke doktriini kehittymistä ja sen soveltamista Euroopan yhteisön kilpailuoikeudessa. Avainhyödyke doktriinissa määräävässä markkina asemassa olevalla yrityksellä on hallussaan hyödyke, palvelu tai infrastruktuuri, jonka uudelleen tuottaminen samoilla markkinoilla ei ole kannattavaa. Määräävässä asemassa olevan yrityksen kilpailijoille tai alalle pyrkiville uusille yrityksille on kuitenkin välttämätöntä päästä käyttämään kyseistä avainhyödykettä, mikäli he haluavat toimia alalla. Tällaisissa tilanteissa avainhyödykkeen haltijalle voidaan asettaa kilpailuoikeudellinen velvollisuus ryhtyä liikesuhteeseen kilpailijoiden ja alalle pyrkivien yritysten kanssa. Avainhyödyke doktriinin soveltaminen nousee erityisen tärkeäksi aloilla, joilta on juuri purettu sääntely. Näillä aloilla doktriinin voidaan katsoa turvaavan jonkinlaisen tasapuolisuuden markkinoilla ja lisäävän kilpailua. Tästä huolimatta avainhyödyke doktriinia on kritisoitu runsaasti, sillä siinä ei oteta huomioon omistusoikeutta, sopimusvapautta tai yleensä taloudellisen toimijan autonomiaa. Avainhyödyke doktriinin kilpailuoikeudellisesta ristiriitaisuudesta olennaisena osoituksena on, ettei Euroopan yhteisön tuomioistuin ei ole ottanut kantaa doktriinin olemassaoloon.

European Community Communications Law : An Introduction

The present article is an abridged version of a chapter to the book EC Electronic Communications and Competition Law (London: Cameron May, 2007). It provides an introduction to the rules at the European Community level governing the electronic communications sector (previously and more traditionally referred to as telecommunications). Such an introduction encompasses essentially an enquiry into the relevant competition law rules, of which here particular attention is paid to abuse of dominant position and the essential facilities doctrine, as well as an analysis of the EC sector specific regulatory framework, which has substantially evolved since the liberalisation of the telecommunications sector back in the beginning of the 1990s. It is the objective of the article to explore to what extent both regulatory tools could deal with the specificities of communications markets, and where they may fail to do so.

An economic analysis of unilateral refusals to license intellectual property

The intellectual property laws in the United States provide the owners of intellectual property with discretion to license the right to use that property or to make or sell products that embody the intellectual property. However, the antitrust laws constrain the use of property, including intellectual property, by a firm with market power and may place limitations on the licensing of intellectual property. This paper focuses on one aspect of antitrust law, the so-called “essential facilities doctrine,” which may impose a duty upon firms controlling an “essential facility” to make that facility available to their rivals. In the intellectual property context, an obligation to make property available is equivalent to a requirement for compulsory licensing. Compulsory licensing may embrace the requirement that the owner of software permit access to the underlying code so that others can develop compatible application programs. Compulsory licensing may undermine incentives for research and development by reducing the value of an innovation to the inventor. This paper shows that compulsory licensing also may reduce economic efficiency in the short run by facilitating the entry of inefficient producers and by promoting licensing arrangements that result in higher prices.

A regulação diante da evolução da essencialidade do serviço público : a reclassificação da banda larga como serviço de telecomunicações nos Estados Unidos

Dissertação (mestrado)—Universidade de Brasília, Faculdade de Direito, Programa de Pós-Graduação em Direito, 2016.

The essential role of democracy in the Bush Doctrine: the invasions of Iraq and Afghanistan

Everyone knows that democracy played a role in the Bush Doctrine. What not everyone knows is that this role was essential for the doctrine to be put into operation under which the Iraq invasion was prepared and launched. We argue moreover that, even if aggressive, the Bush doctrine is compatible with the American Liberal Tradition. To demonstrate these arguments we analyze the links between democracy, security, and the US national interests as expressed in the pillars of the American foreign policy since the end of Cold War. The consequential belief of the Bush Administration on the positive effect of exporting democracy by the use of force to Afghanistan and Iraq to fight terrorism will be remarked. It will be shown, however, that in the first years of the Bush Administration, among the justifications for the military interventions in the two countries, security reasons prevailed over democratic concerns, although the latter was significantly present since the early hours after September 11. It was only when it became clear that WMDs did not exist in Iraq that the exporting of democracy as the ultimate weapon to fight terrorism grew remarkably and prevailed over security reasons to invade those rogue states. The paper uses quantitative and qualitative content analysis of the speeches of President Bush and his Secretaries of State and Defense.

Horae solitariae in two volumes, or, essays upon some remarkable names and titles of Jesus Christ : occurring in the Old Testament and declarative of his essential divinity and gracious offices in the redemption of men : to which is annexed an essay, chiefly historical, upon the doctrine of the Trinity. --

Includes bibliographical references.

Horæ solitariæ, or, Essays upon some remarkable names and titles of Jesus Christ, occurring in the Old Testament and declarative of his essential divinity and gracious offices in the redemption of men: to which is annexed an essay, chiefly historical, upon the doctrine of the trinity. In two volumes ...

Mode of access: Internet.

Improving the oral health status of functionally independent and dependent seniors residing in long-term care facilities through dental hygiene education /

The purpose of this study was to evaluate the oral health status of residents residing in 2 long-term care facilities and determine if dental hygiene education was required in order to improve their current oral health. The oral health status of 6 independent and 4 dependent individuals residing in 2 long-term care facilities was evaluated. In addition, the current oral health and disease prevention practices employed by 4 caregivers who were responsible for providing oral care to dependent residents in the long-term care facilities were evaluated. Furthermore, an evaluation of the oral care practices of independent residents who were responsible for providing their own care was conducted. Finally, the challenges that caregivers and independent residents faced when performing oral care were determined, and methodological changes were proposed. Using a generic qualitative research methodology, data collection was comprised of semi structured interviews, field observations, and documentation. The oral health status of the residents was reevaluated 3 months later. The findings of this study demonstrated an increase in plaque accumulation, gingival inflammation, and unhealthy gingival tissue colour changes among the residents over the 3-month period. The study revealed that poor oral health among the residents was a result of inadequate oral hygiene care techniques, difficulties accessing oral health care, financial limitations, insufficient care staff, insufficient time for personal care duties, lack of professional development, minimal interprofessional collaboration of health disciplines, and lack of perseverance on the part of the caregivers and residents. Overall, oral health is essential, and maintaining optimal oral health requires increased collaboration and communication between health care providers.

Barriers and commitment of facilities management profession to the sustainability agenda

The practice of sustainable facilities management (FM) is rapidly evolving with the increasing interest in the discourse of sustainable development. This paper examines a recent survey of the experiences of facilities managers in the rapidly growing and evolving industry in regard to the barriers and their commitment to the sustainability agenda. The survey results show that time constraints, lack of knowledge and lack of senior management commitment are the main barriers for the implementation of consistent and comprehensive sustainable FM policy and practice. The paper concludes that the diversity of the FM role and the traditional undervaluation of the contribution it makes to the success of organisations are partially responsible for lack of success in achieving sustainable facilities. The overwhelming barrier for sustainable FM practice is the lack of understanding, focus and commitment of senior executives in appreciating the opportunities, threats and need for strategic leadership and direction in driving essential change, and hence further the sustainability agenda.

Seasonal variation of Alphitobius diaperinus population in broiler facilities in the center-north region of the state of São Paulo

The seasonality of Alphitobius diaperinus population was studied during different seasons during one year, in broiler facilities located in the center-north region of the State of São Paulo. Parasite counting was weekly carried out by the use of traps adapted from the modified model of Arends. During the experimental period, facilities were not submitted to chemical treatment, and the litter was changed between flocks. A lower number of adults and larvae was observed during autumn, with the peak registered in the summer. There was no significant difference between spring and winter averages (adults and larvae), and between spring and summer averages (adults). Average temperatures in the facilities varied from 23.4ºC (winter) to 27.1ºC (spring). The environmentally controlled systems used by the broiler industry provide an adequate habitat for A. diaperinus development. The continuous monitoring of the population of this parasite is essential for designing control strategies, and this can be accomplished by utilizing the traps used in the present experiment.

Endosymbiosis in trypanosomatids: the genomic cooperation between bacterium and host in the synthesis of essential amino acids is heavily influenced by multiple horizontal gene transfers

Background Trypanosomatids of the genera Angomonas and Strigomonas live in a mutualistic association characterized by extensive metabolic cooperation with obligate endosymbiotic Betaproteobacteria. However, the role played by the symbiont has been more guessed by indirect means than evidenced. Symbiont-harboring trypanosomatids, in contrast to their counterparts lacking symbionts, exhibit lower nutritional requirements and are autotrophic for essential amino acids. To evidence the symbiont’s contributions to this autotrophy, entire genomes of symbionts and trypanosomatids with and without symbionts were sequenced here. Results Analyses of the essential amino acid pathways revealed that most biosynthetic routes are in the symbiont genome. By contrast, the host trypanosomatid genome contains fewer genes, about half of which originated from different bacterial groups, perhaps only one of which (ornithine cyclodeaminase, EC:4.3.1.12) derived from the symbiont. Nutritional, enzymatic, and genomic data were jointly analyzed to construct an integrated view of essential amino acid metabolism in symbiont-harboring trypanosomatids. This comprehensive analysis showed perfect concordance among all these data, and revealed that the symbiont contains genes for enzymes that complete essential biosynthetic routes for the host amino acid production, thus explaining the low requirement for these elements in symbiont-harboring trypanosomatids. Phylogenetic analyses show that the cooperation between symbionts and their hosts is complemented by multiple horizontal gene transfers, from bacterial lineages to trypanosomatids, that occurred several times in the course of their evolution. Transfers occur preferentially in parts of the pathways that are missing from other eukaryotes. Conclusion We have herein uncovered the genetic and evolutionary bases of essential amino acid biosynthesis in several trypanosomatids with and without endosymbionts, explaining and complementing decades of experimental results. We uncovered the remarkable plasticity in essential amino acid biosynthesis pathway evolution in these protozoans, demonstrating heavy influence of horizontal gene transfer events, from Bacteria to trypanosomatid nuclei, in the evolution of these pathways.

The Burden Of Eclampsia: Results From A Multicenter Study On Surveillance Of Severe Maternal Morbidity In Brazil.

Maternal mortality (MM) is a core indicator of disparities in women's rights. The study of Near Miss cases is strategic to identifying the breakdowns in obstetrical care. In absolute numbers, both MM and occurrence of eclampsia are rare events. We aim to assess the obstetric care indicators and main predictors for severe maternal outcome from eclampsia (SMO: maternal death plus maternal near miss). Secondary analysis of a multicenter, cross-sectional study, including 27 centers from all geographic regions of Brazil, from 2009 to 2010. 426 cases of eclampsia were identified and classified according to the outcomes: SMO and non-SMO. We classified facilities as coming from low- and high-income regions and calculated the WHO's obstetric health indicators. SPSS and Stata softwares were used to calculate the prevalence ratios (PR) and respective 95% confidence interval (CI) to assess maternal characteristics, clinical and obstetrical history, and access to health services as predictors for SMO, subsequently correlating them with the corresponding perinatal outcomes, also applying multiple regression analysis (adjusted for cluster effect). Prevalence of and mortality indexes for eclampsia in higher and lower income regions were 0.2%/0.8% and 8.1%/22%, respectively. Difficulties in access to health care showed that ICU admission (adjPR 3.61; 95% CI 1.77-7.35) and inadequate monitoring (adjPR 2.31; 95% CI 1.48-3.59) were associated with SMO. Morbidity and mortality associated with eclampsia were high in Brazil, especially in lower income regions. Promoting quality maternal health care and improving the availability of obstetric emergency care are essential actions to relieve the burden of eclampsia.

Chemical Composition And Free Radical-scavenging, Anticancer And Anti-inflammatory Activities Of The Essential Oil From Ocimum Kilimandscharicum.

The essential oil from the leaves of Ocimum kilimandscharicum (EOOK), collected in Dourados-MS, was investigated for anticancer, anti-inflammatory and antioxidant activity and chemical composition. The essential oil was extracted by hydrodistillation, and the chemical composition was performed by gas chromatography-mass spectrometry. The essential oil was evaluated for free radical-scavenging activity using the DPPH assay and was tested in an anticancer assay against ten human cancer cell lines. The response parameter (GI50) was calculated for the cell lines tested. The anti-inflammatory activity was evaluated using carrageenan-induced pleurisy in mice. The chemical composition showed 45 components with a predominance of monoterpenes, such as camphor (51.81%), 1,8 cineole (20.13%) and limonene (11.23%). The EOOK exhibited potent free radical-scavenging activity by the DPPH assay with a GI50 of 8.31 μg/ml. The major constituents, pure camphor (IC50=12.56 μg/ml) and mixture of the limonene: 1, 8 cineole (IC50=23.25 μg/ml) displayed a potent activity. The oral administration of EOOK (at 30 and 100 mg kg(-1)), as well as the pure camphor or a mixture of 1,8 cineole with limonene, significantly inhibited the carrageenan (Cg) induced pleurisy, reducing the migration of total leukocytes in mice by 82 ± 4% (30 mg kg(-1) of EOOK), 95 ± 4% (100 mg kg(-1) of EOOK), 83 ± 9% (camphor) and 80 ± 5% (mixture of 1,8 cineole:limonene 1:1). In vitro cytotoxicity screening against a human ovarian cancer cell line displayed high selectivity and potent anticancer activity with GI50=31.90 mg ml(-1). This work describes the anti-inflammatory, anticancer and antioxidant effects of EOOK for the first time. The essential oil exhibited marked anti-inflammatory, antioxidant and anticancer effects, an effect that can be attributed the presence of majorital compounds, and the response profiles from chemical composition differed from other oils collected in different locales.