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The essential facility doctrine (hereinafter called: „EFD”) has a long and proud history. Rigorous scrutiny of this concept should be precided by crucial question to which extend the doctrine finds its practical application. Although the dogma, its uncertainty and an imprecise scope is widely commented by scholars, both the US and EU courts have developed their understanding which within EU was openly introduced by the Commision yet in the early 90’s and has been thereafter applied for over thirty years. The EFD, also called „unilateral refusal to deal” or as the „bottleneck doctrine”, became widely recognized but a non-standarized exception from exclusive usage of facility which was previously aquired or built with private resources, but in order to ensure fulfillment of competition law objectives, should be somehow shared with competitors. The paradigm reflects, by extension, a judicial concept walking a tighrope between legally protected right of ownership and sensibly imposed duty to share entry and benefits gained from such key facility.
2. Main assumptions
The doctrine shall be seen as an „extra weight” in a market dominated by an undertaking possessing significant power. In simple terms, the doctrine imposes on the owners of essential facility a duty to deal with competitors. Thus, the concept illustrates modern economic-orientated antitrust policy, where the pre-eminence of competetiveness is understood as providing access to something „essential” for competition in a particular market. Objective necessity criterion in the essential facility doctrine is a necessary usage of a product or infrastructure in order to enter into a market or to initiate an activity, as no other alternative exists or is granted. Therefore, in cases where an input, facility or infrastructure owned by an undertaking in dominant position is crucial to ensure effective competition on the downstream market and at the same time it is not legally, technically or economically possible to find an alternative for this input, facility or infrastructure, an obligation to supply such essentials to competitors in the downstream market is imposed on undertakings in a dominant position through EFD . It follows that the main purpose is to impose on the competitor a duty to negotiate and/or give access to the facility, against a reasonable fee. Without access to such key infrastructure such undertaking is not able to pursue its own activity in a profitable manner and as a result will be shortly driven out of the market. The legal framework upon which the doctrine hinges is protection of just, open and equitable competition.
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