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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.
That notwithstanding, the rationale for EFD reaches far from freedom of contract or allegation of infringement of property rights. The idea has significant output on incentive to innovate and causes calculable problems for free riders. Taking into account that EFD is applied in various sectors, ranging from railroads, fruit and vegetables wholesaling, through telecommunications, land and sea transportation, aviation industry, professional sports, ending with audiovisual and media sectors, the effects of application of the doctrine become extremely vast. It should be however stressed that if the facility is truly essential, the dominant in a particular market will be immune on certain stages of competition (or even will not be allowed to take part therein at all). This is why, although progressing liberalisation of the markets, an amount of cases related to access to essential facilities does not decrease. Hence, in a state-dominant sectors, the competition authorities constantly emphasize a necessity to force undertakings not only to simple declaration of access, but also to promote continuing supervision of access-price, priority and other standard sale provisions of its powerful competitors.
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