Rethinking the Essential Facilities Doctrine for the EU Digital Economy

Abstract

Although the essential facilities doctrine has not been applied recently anymore in EU competition enforcement, it is regularly referred to in EU policy discussions as a tool to open up markets in which ‘tech giants’ act as gatekeepers to consumers. Considering that the digital economy is not anymore driven by physical infrastructures, such as the bridges in the US Terminal Railroad case from which the essential facilities doctrine originates, other assets like data or rankings as the backbone of many digital markets may form the subject of essential facilities claims. Access to data or being ranked by an online platform can now be essential for businesses to compete in the market. Against this background, the paper explores whether there should be more room for competition interventions under the essential facilities doctrine in the digital economy, considering market characteristics, as well as the recent Google competition cases seemingly bypassing the essential facilities doctrine, and legislative and policy developments regulating access outside EU competition law. It is put forward that the essential facilities doctrine should be rethought in order to be effectively applied in the EU digital economy, in particular by aligning its application with the underlying economic interests.