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The courts and competition authorities both at the EU and the member state level, tend to reason in a specific way, when face with cases where the use of some essential infrastructure of facility is at stake. However, the adoption of specific pattern evolved through case law which at the present time seems to argue in favour of the existence of the doctrine. The existence of the concept was repeteadly confirmed, although mostly stayed unnamed, through notable judgments such as Terminal Railroad Association , Microsoft , Oscar Bronner or IMS Health.
Several practical problems could be identified in reconciling objectives of the doctrine. The EFD clearly gives precedence to the maintenance of competiton over the contractual freedom of undertakings controlling not always unique, but unarguably important facility. Nevertheless, the concept has far-reaching impact on constitutional right to proprietorship and serves as a long-standing limitation on the general contract law rule that an undertaking has no obligation to deal with competitors. Such concept is visible especially at the heart of US antitrust law as essential facility doctrine renders a strategic, unilateral refusal to deal subject to potential liability of monopolisation of Section 2 of the U.S. Sherman Act and respectively abusive behaviour under art. 102 TFUE.
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