The EU essential facilities doctrine after Android Auto: A wild card without limiting principles?

In recent years, the EU competition framework has been under strain because of the increasing market interconnectivity. Criticisms have raised regarding the EU competition enforcement model. In response, institutional debate and measures have focused on the enhancement of fairness in this area of EU law. Following the entry into force of the Lisbon Treaty, another source of ‘fairness’ in the enforcement of EU competition law is the EU Charter of Fundamental Rights. Article 47 of the EU Charter is the most invoked provision in the context of EU competition litigation. Considered to reaffirm the EU general principle of effective judicial protection, this article constitutionalizes the right to an effective remedy and to a fair trial. Although the existing literature has highlighted the overall influence of fundamental rights in the enforcement of competition law, the contribution of Article 47 Charter, as interpreted by the Court of Justice of the European Union, in enhancing fairness in EU competition policies remains, so far, underexplored. The current paper aims to fill this gap in the literature by offering a threefold input. First, the paper situates the discussion on fairness in EU competition law in the broader philosophical debate regarding various conception(s) of fairness. Second, the paper analyses the case law of the EU Court of Justice on Article 47 of the EU Charter in EU competition litigation. Finally, the paper discusses what kind of ‘fairness’ Article 47 strengthens in the area of EU competition law enforcement.

In recent years, the EU competition framework has been under strain because of the increasing market interconnectivity. Criticisms have raised regarding the EU competition enforcement model. In response, institutional debate and measures have focused on the enhancement of fairness in this area of EU law. Following the entry into force of the Lisbon Treaty, another source of ‘fairness’ in the enforcement of EU competition law is the EU Charter of Fundamental Rights. Article 47 of the EU Charter is the most invoked provision in the context of EU competition litigation. Considered to reaffirm the EU general principle of effective judicial protection, this article constitutionalises the right to an effective remedy and to a fair trial. Although the existing literature has highlighted the overall influence of fundamental rights in the enforcement of competition law, the contribution of Article 47 Charter, as interpreted by the Court of Justice of the European Union, in enhancing fairness in EU competition policies remains, so far, underexplored. The current paper aims to fill this gap in the literature by offering a threefold input. First, the paper situates the discussion on fairness in EU competition law in the broader philosophical debate regarding various conception(s) of fairness. Second, the paper analyses the case law of the EU Court of Justice on Article 47 of the EU Charter in EU competition litigation. Finally, the paper discusses what kind of ‘fairness’ Article 47 strengthens in the area of EU competition law enforcement.

During the last decade, the evolution of the competition law enforcement has reinvigorated the debate concerning the compatibility of the EU enforcement regime with fundamental rights. In particular, two factors have increased the relevance of the protection of fundamental rights in the context of competition law enforcement: the entry into force of the Lisbon Treaty (incorporating the EU Charter of Fundamental Rights) and the progressive criminalization of competition law enforcement. One of the tensions between competition law enforcement and the protection of fundamental rights concerns the right to a fair trial included in Article 6 of the European Convention of Human Rights (ECHR), as well as in Article 47(2) EU Charter. Due to the technical nature of competition law analysis, the EU and national courts have traditionally granted a certain margin of discretion to the competition authorities. In the aftermath of the Menarini judgment of the European Court of Human Rights (ECtHR), the question is whether such margin of discretion still complies with the requirement of full judicial review introduced in Menarini. This chapter reviews the ongoing debate on compatibility of EU competition law enforcement with the fundamental rights enshrined in the EU Charter (Sect.1), discusses the requirement of full judicial review introduced by the ECtHR in Menarini (Sect. 2), and analyzes the compatibility of the requirement of full judicial review with the standard applied by the Court of Justice of European Union (CJEU) in antitrust cases (Sect. 3). While in its recent jurisprudence the CJEU confirms the compatibility of its standard of judicial review with Article 47 of the EU Charter, it remains unclear whether the ECtHR would achieve the same conclusion in relation to Article 6 ECHR. The issue of compatibility of judicial review with the requirements of fair trial remains open at the national level where the courts often continue to limit their review to the procedural aspects of the competition authority’s decisions.

The District of Columbia Circuit in 1977 coined the term to refer to a doctrine it traced 65 years of prior Supreme Court jurisprudence, and every federal circuit has recognized the essential facilities doctrine with similar elements. The United States Supreme Court, however, has never actually used the words in a holding. In 1989, concerned by what he perceived to be the potential overuse of the essential facilities Professor Phillip Areeda published his well-known article Essential Facilities: An Epithet in Need of Limiting Principles. As the name suggests, this article made a provocative point - that the essential facilities doctrine was in need of limiting principles, without which it would be overused and lead to mistaken and counterproductive results. The article explores how the growing academic criticism of the essential facilities doctrine has gone too far. By and large, the case law has dealt adequately with the facilities doctrine, and it throws the baby out with the bath water to forget the important core case that justified the doctrine in the first place. Worse still, thinking of Professor Areeda and his followers as solely critics of the essential facilities doctrine runs the especial risk of failing to enforce the antitrust laws where even the doctrine's critics agree antitrust enforcement makes sense - efforts by regulated monopolies (such as the telephone network) to exact monopoly rent by stifling competition in unregulated markets that depend on the monopoly's facility.

(2014). The “Exceptional Circumstances” Test: Implications for Frand Commitments from the Essential Facilities Doctrine Under Article 102 TFEU. European Competition Journal: Vol. 10, No. 1, pp. 37-67.

The State Administration for Market Regulation has referred to the concept of "essential facilities" in two regulations, and some courts have utilized the essential facilities doctrine in their judgments to recognize a defendant's refusal to deal as an illegal act of monopolization. As a doctrine originally applicable only to tangible properties in the United States, the essential facilities doctrine has gradually evolved through case law to be applied in the context of intellectual property (IP) rights. Nevertheless, there remains significant controversy in China and other jurisdictions as to whether the essential facilities doctrine can be extended to IP rights. Given the fundamental differences between intangible and tangible properties, as well as the core mechanisms of IP laws, greater caution and limits must be exercised when applying the essential facilities doctrine to IP. Specifically, (1) compulsory licensing should only be implemented when the IP in question is deemed an essential facility; (2) Article 7 of the Provisions on the Prohibition of the Abuse of Intellectual Property to Eliminate or Restrict Competition should be interpreted as "harm the competition in the secondary market"; and (3) in cases involving compulsory licensing, the court should examine whether such licensing would have an unreasonable adverse impact on the rights holder.

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.

This paper documents the successful, if lamentable, rise of a made-in-Canada essential facilities doctrine. This made-in-Canada essential facilities doctrine is a consequence of recent enforcement of the abuse of dominance provisions of the Competition Act in the Toronto Real Estate Board case. The analysis in this paper finds that the rise of the made-in-Canada essential facilities doctrine is one implication of the developing jurisprudence of the Federal Court of Appeal and the Competition Tribunal with respect to all three of the elements required for a finding of abuse of dominance: control, practice of anticompetitive acts, and a substantial prevention or lessening of competition. This paper explains the error made in the Toronto Real Estate Board case for all three of these required elements and how they combine to result in the made-in-Canada essential facilities case. The policy and economic incoherence of this made-in-Canada essential facilities doctrine are fully manifested in the current abuse of dominance case against the Vancouver Airport Authority. This paper explains that this made-in-Canada essential facilities doctrine is inconsistent with the economics of vertical foreclosure and the economic foundations of the abuse of dominance provisions in the Competition Act. The problem in both of these cases is not conduct that creates, enhances, or maintains market power, but instead exclusion downstream is possible because of market power upstream and it may enhance efficiency.

Beyond 'Essential Facilities': Innovation, Intellectual Property and Competition Policy Across the Atlantic

This article examines antitrust issues concerning digital platforms equipped with big data. Recent initiatives by the Japanese competition agency are highlighted, comparing them with those by the USA and EU competition authorities. First examined is whether competition among platforms would result in a select few super platforms with market power, concluding that AI with machine learning has augmented the power of super platforms with strong AI-capability, leading to increased importance of merger control over acquisitions by platforms. Next scrutinized is the argument for utility-regulation to be imposed on super platforms, concluding that wide support is limited to data portability, leaving competition law as the key tool for addressing super platforms, its core tool being the provision against exclusionary conduct, enforcement of which, initially, concerns whether to order super platforms to render their data accessible to their rivals. Passive refusal-to-share data needs to be scrutinized under the essential facility doctrine. Beyond passive refusal, platforms’ exclusionary conduct requires competition agencies to weigh the conduct’s exclusionary effects against its efficiency effects. Finally addressed is exploitative abuse, explaining its relation to consumer protection, concluding that competition law enforcement on exploitative abuse should be minimized, since it accompanies risk of over-enforcement.

As antitrust cases becomes more complex, so does its remedies. Patterns are beginning to emerge in the dizzying array of remedies in recent monopolization and merger cases. Like the cases themselves, the remedies increasingly focus on access to network industries and platform technologies. In an economy increasingly dominated by information and information technology, access is often dependent on seamless interoperability. It is thus not surprising that antitrust remedies increasingly also have focused the disclosure of competitively necessary information as well as the protection of competitively sensitive information obtained from actual or potential competitors. Finally, the more complex the remedy, the greater the need for sophisticated oversight and dispute resolution mechanisms that rely on third-party experts and typically exceed the resources and strengths of the enforcement agencies. While access and information remedies have been a part of antitrust law since the very earliest days of the Sherman Act, they have become a vital part of litigated cases and settlements in recent times in both the United States and the European Union. This has been particularly true for cases involving network industries, telecommunications, broadcasting, software platforms, and other high technology industries at the forefront of antitrust enforcement. When taken together, these recent cases and settlements constitute an informal revival of the essential facilities doctrine and an acknowledgment that the essential facilities doctrine, and similar access remedies, remain an important and needed part of the antitrust toolkit. This essay will examine the growing use of complex behavioral remedies in both merger and monopolization cases that suggest antitrust enforcement has moved far beyond any stated preference for structural remedies. Particularly in settlements, commitments, and consent decrees, the Antitrust Division, Federal Trade Commission, and the European Commission have permitted mergers and unilateral conduct by dominant firms conditioned upon complex behavioral commitments include: 1) Continued obligations to supply or license competitors and customers with vital inputs on fair and non-discriminatory terms; 2) Continued obligations to allow competitors access to networks on fair and non-discriminatory terms; 3) The disclosure of intellectual property, know how, and technical information necessary to make these access obligations meaningful; 4) Creation of firewalls and other devices to prevent the dominant or merging firms from misusing competitively sensitive information obtained through their ongoing relationships with their competitors and customers; and 5) The use of special masters, technical committees, monitors, regulatory bodies, and the creation of third-party alternative dispute resolution procedures to handle the inevitable disputes that will arise without requiring the agencies or courts to act as long-term regulators of the industries and firms in question. I use examples such as the Microsoft and Intel litigation in the U.S. and the EU, as well as more recent U.S. merger consent decrees involving Google-ITA, Comcast-Universal, and Live Nation-Ticketmaster to illustrate these important changes in competition law enforcement and what they portend for the future.

This contribution examines the developing contours of the essence of the fundamental right to an effective remedy and to a fair trial in the light of salient case-law of the Court of Justice of the European Union. It is divided into three main parts. The first part provides an overview of the meaning of the essence of fundamental rights in EU law and the scope of the inquiry in relation to Article 47 of the Charter of the Fundamental Rights of the European Union (“the Charter”). The second part evaluates the essence of the fundamental right to an effective remedy and to a fair trial in connection with justified limitations that may be placed on its exercise as provided for in Article 52(1) of the Charter within the framework of the EU system of fundamental rights protection, which in turn implicates the relationship with the Court’s case-law on national procedural autonomy, equivalence, and effectiveness. The third part delves into the essence of the fundamental right to an effective remedy and to a fair trial within the framework of the EU system of judicial protection, as illustrated by the Court’s case-law in several areas, including standing for individuals in direct actions before the EU courts, judicial independence, and restrictive measures in the Common Foreign and Security Policy. Through this analysis, the author argues that, while much awaits further refinement, certain recent developments in the Court’s case–law indicate that the essence of the fundamental right to an effective remedy and to a fair trial can play a meaningful role in the EU system of fundamental rights protection and the EU system of judicial protection more broadly, and thus the best may be yet to come as that case-law progresses in the future.

The United States and the rest of the world have taken markedly different views of the essential facilities doctrine in recent years. Although the essential facility doctrine has many defenders in the United States, it has been criticized by the Supreme Court in dicta, in the report of the Antitrust Modernization Commission, and the more recent monopoly report of the Bush administration Justice Department.The situation is quite different everywhere else. In Europe, the essential facilities doctrine, also called unilateral refusals to deal, has been applied over the past thirty years by the European Commission, the Court of First Instance, the European Court of Justice, and increasingly courts of the twenty-seven Member States. In addition, the European Commission’s recently-issued draft guidelines on the abuse of dominance endorse the doctrine and sensibly describe its application and limitations. The situation is similar in countries outside of the European Union. Most jurisdictions, both common law and civil law, apply some form of the essential facility doctrine to unjustifiable denials of access to infrastructure and other forms of facilities that are impossible to duplicate, but nonetheless essential for competition.Of course, just because everyone does something does not make it right. However, there is a growing international consensus that it is sometimes appropriate to require a regime of nondiscriminatory access to infrastructure and related facilities. The extent to which the international community is applying some version of the essential facilities doctrine in a thoughtful and consistent manner suggests that the United States is an outlier and should rethink its position. A revitalized essential facilities doctrine more in line with the international consensus would be beneficial domestically as well as internationally.In this essay, we look briefly at the law of the essential facilities doctrine in the United States and abroad in order to analyze which jurisdictions have applied these rules in a sensible and economically efficient manner, and which have used the doctrine in a more ad hoc and arbitrary fashion. Part One analyzes the situation in the United States. Part Two examines the law of essential facilities and unilateral refusals to deal in the European Union and its member states. Part Three looks at the rest of the world and the variety of approaches followed in diverse common and civil law jurisdictions that have examined this question. Part Four looks at the prospects for harmonization of these divergent approaches through the International Competition Network and the more constructive role that the United States must play if these efforts are to be successful. Part Five offers substantive suggestions to better harmonize U.S. law and practice with the developing consensus that antitrust law has an important role to play when dominant firms deny access to essential facilities in economically and socially harmful ways.

This chapter assesses whether competition promotes economic growth. In contemplating the design of competition policy in a developing country, the first question to be answered is whether a policy that aims to maximize competition with competition law enforcement will deliver economic growth and meet the development needs of a developing country. As indicated by all the growth models examined in the previous chapter, the key to economic growth is the ability to create more output for the economy with existing resources; it relies on productivity gains and innovation. The chapter then examines whether competition promotes productivity growth and innovation. Overall, there is overwhelming evidence that increased competition leads to higher productivity and economic growth. There is also very strong evidence that competition law enforcement promotes productivity and economic growth. However, it should be noted that at least one study concludes that competition law enforcement has negligible effect on economic growth. Meanwhile, there is some conflicting evidence as to whether a minimum degree of institutional capacity is needed to allow a country to benefit from the introduction of competition law. One other factor that has been traditionally given a high degree of importance for economic growth in developing countries is foreign direct investment.

Competition law is key to the promotion of consumer welfare and consumer choice, efficiency maximization, market integration, market liberalization, and competitiveness. The review of the evolution of competition law enforcement in Greece shows that it has run in parallel with the path of the Greek economy toward liberalisation modernisation, development and growth. Upon this basis, competition law has contributed to increased levels of investment in the Greek economy, the development of new services and new corporate structures and accountability in Greece. In a fast changing world, in which market and societal development is increasingly interdependent across national borders, the question now turns on to whether competition law enforcement in Greece ought also to take into account public policy objectives, such as environmental protection and sustainability or industrial policy objectives. The competition law enforcement authorities and national Courts have made great progress in the last 20 years in keeping abreast with developments in respect of competition law compliance and enforcement and this has provided a better guarantee for a level playing field and fairer conditions of competition in the various product and services markets in Greece.