Obowiązek udostępnienia urządzenia kluczowego w świetle wspólnotowych reguł konkurencji (Duty to Provide Access to Essential Facilities under European Competition Law)

Studia z dziedziny Prawa Europejskiego 6/2005

26 Pages Posted: 12 Dec 2012

See all articles by Agnieszka Janczuk-Gorywoda

Agnieszka Janczuk-Gorywoda

Tilburg Law and Economics Center (TILEC); Tilburg University Law School

Date Written: June 1, 2005

Abstract

The essential facilities doctrine is a powerful tool for compelling dominant undertakings to share their products or services when these inputs are indispensable for another undertaking to perform business activity. The main objective of the essential facilities doctrine is to stimulate competition in related markets. However, due to its divergent effects, the doctrine should be applied carefully. The central focus of this article is on the two issues of a great practical significance – legitimate business justifications of the refusal to deal and terms under which compulsory access should be granted.

Once the facility has been determined to be indispensable, the next question is whether the refusal to supply is objectively justified. There are two different kinds of justifications – of 'micro' and 'macro' level. From the micro point of view the circumstances of the particular owner of the facility are relevant. This article points out that the concept of objective justifications at a micro level involves also that of proportionality. At the macro level, in turn, the pro-competitive impacts and negative effects of the doctrine should be balanced. It follows that while deciding about the compulsory access to the facility, the allocative and dynamic efficiencies should be considered and the doctrine should be applied only when benefits to competition outweigh the costs of antitrust intervention.

The second important issue addressed by this article relates to the terms of mandatory access to essential facilities. The main conclusion is that it must be provided on a nondiscriminatory basis and at a reasonable price. This article outlines that also the mandated terms are crucial for the static and dynamic competition.

Note: Downloadable document is in Polish.

Keywords: essential facilities, European competition law, abuse of dominant position

JEL Classification: L41

Suggested Citation

Janczuk-Gorywoda, Agnieszka, Obowiązek udostępnienia urządzenia kluczowego w świetle wspólnotowych reguł konkurencji (Duty to Provide Access to Essential Facilities under European Competition Law) (June 1, 2005). Studia z dziedziny Prawa Europejskiego 6/2005, Available at SSRN: https://ssrn.com/abstract=2187671

Agnieszka Janczuk-Gorywoda (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Tilburg University Law School ( email )

Tilburg, 5000 LE
Netherlands

HOME PAGE: http://https://www.tilburguniversity.edu/webwijs/show/?uid=a.a.janczuk

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