Essential Facilities Doctrine
The Essential Facilities Doctrine is a teaching stemming from US competition law, which aims to prevent the abuse of a dominant position through so-called business refusal.
In order to secure competition , the owner of essential facilities or information (essential facilities) for the provision of certain services or for the production of certain products is compelled under certain conditions to grant his competitors rights of use or licenses for such facilities or information for a reasonable fee ( contract obligation ) .
The essential facilities doctrine has now also found its way into European competition law. The requirements are different in the USA and in the EU , although American law focuses more on negotiations between the parties.
In Europe it is commonly required to apply the doctrine:
- that the company requesting the right of use intends to offer new products or services on a market that is dependent on the use of the essential facility, which the owner of the essential facility does not offer and for which there is at least a potential consumer demand,
- that the refusal to grant the right of use was not made for objective reasons, and
- that the refusal is likely to reserve the dependent market for the owner of the essential facility by excluding any competition in that market.
In the course of liberalization within the EU, the doctrine has gained great importance. In Germany , large networks (energy supply, telecommunications, transport) are particularly affected. They are regulated and monitored by the Federal Network Agency (BNetzA) based in Bonn to avoid competitive abuse .
literature
- Peter Sprickmann Kerkerinck: The Essential Facilities Doctrine with special consideration of intellectual property, illustrated using the example of the railway sector. Peter Lang Frankfurt / M. 2002, ISBN 3-631-39779-8
- Daniel Hürlimann: Software Interfaces as Essential Facilities (PDF; 619 kB), in: Magister, Editions Weblaw , Bern 2008, ISBN 978-3-905742-55-8
- Arianna Andreangeli: "Interoperability as an" essential facility "in the Microsoft case - encouraging competition or stifling innovation?" European Law Review 2009, 34 (4), 584-611
- Kai Simon: Value-added services in traffic telematics and access to information and data collections. An investigation of European and German antitrust, constitutional and copyright law with special attention to road toll collection systems . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4480-2 .
Web links
- Federal Network Agency website
- ECJ Case T-201/04 Microsoft Corp./Kommission (2007) Coll. II 3601