The Essential in Essential Facilities

Abstract

The paper examines the applicability of the Essential Facilities Doctrine (EFD) in the context of competition policy in digital platform markets. It begins by comparing this doctrine with the traditional antitrust approach to anti-competitive practices such as tying and raising rivals' costs. It demonstrates that both approaches aim to address antitrust harm resulting from the extension of market power into additional competitive environments. However, the EFD also considers specific conditions that warrant non-discriminatory access obligations and potential regulatory intervention. This comparative analysis of similarities and differences is employed to address antitrust issues in digital platform markets, given the existence of bottlenecks and gatekeepers that can exploit market power. The paper uses the Buscapé v. Google (Google Shopping) case, which was examined by Brazilian antitrust authority in 2019, as an illustrative example to highlight the possible approaches to these antitrust concerns. KEYWORDS: Essential Facilities Doctrine; Refuse to Deal; Market Power Leveraging; Digital Platforms, Antitrust Policy.