Essential Facilities Doctrine Research Articles

The “objective test” and the downstream market presence requirement in Big Data access cases under the essential facilities doctrine - a critical assessment

One possible way to gain access to competitively relevant sets of Big Data is toapply the essential facilities doctrine. However, the European Commission and theEuropean Court of Justice have established several different criteria for applying thedoctrine. Since neither institution has yet applied the doctrine in Big Data accesscases, it is not clear which of the criteria applies in such positions. This paper attemptsto analyze the impact of the “objective test” and the requirement that the controllingcompany be active in the downstream market (which are included in all assessmentcriteria) in Big Data access cases, with the goal of answering the research question,“Do the application of the “objective test” and the requirement that the controllingcompany be active in the downstream market impede the effectiveness of the doctrinein Big Data access cases under EU competition law, and if so, how should they bechanged?” The conclusion is that in Big Data access cases, the “objective test” shouldbe mitigated and replaced by the “subjective test” or the “average company test” andthe requirement that the controlling company be active in the downstream marketshould be discarded altogether in order for the doctrine to be an effective tool foraccessing competitively relevant sets of Big Data.

What IP owes to antitrust – and which IP paradigm is required to foster innovation and creativity in the digital era

The Essential Facilities (EF) doctrine meant that the ‘interference’ of antitrust principles on intellectual property regimes progressively made room for third parties to access IPR-protected intangibles, inventions, and software products in particular. A substantial step indeed against the ‘monopolization’ of top-notch, ‘non-substitutable’ innovation. But the objective limits of the applicability of said doctrine appear nowadays too strict vis-à-vis the necessities of the technical mode of production of digital innovation, AI first and foremost. A proposal for a new IP paradigm is submitted – one that could reconcile said necessities with the legitimate interests to an adequate compensation of authors of (utilitarian or ‘intellectual’) digital works.

The Essential in Essential Facilities

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.

The Essential Facilities Doctrine, Intellectual Property Rights, and Access to Big Data

This paper analyzes the criteria for applying the essential facilities doctrine to intellectual property rights and the possibility of applying it in cases where Big Data is the alleged essential facility. It aims to answer the research question: “What are the specifics of the intellectual property criteria in essential facilities cases and are these criteria applicable to Big Data?” It points to the semantic openness of the “new product” and “technical progress” conditions that have been developed for assessing whether an intellectual property right constitutes an essential facility. The paper argues that the intellectual property criteria are not applicable in all access to Big Data cases because Big Data is not necessarily protected by copyright. While a set of Big Data could be protected by copyright if certain conditions are met, even in such cases the lack of intrinsic value of Big Data significantly limits the applicability of the intellectual property criteria.

The Application of Essential Facilities Doctrine in Antitrust Regulation of IP Rights

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.

Self-preferencing entre todo y nada: en busca de una definición según la ley brasilera de defensa de la competencia

The term self-preferencing has gained great prominence in the competition and regulation debate involving digital platform markets. However, it has increasingly been used to designate practices with distinct structure, economic rationale, and effects, including in contexts that fall outside of digital markets (even though those conducts already existed in preceding times and were widely scrutinized by competition authorities under the existing legal grounds). In Brazil, the situation is no different. This is due to the lack of a well-established legal test, including definitions about presumptions of illegality and burden of proof, and the attempt to concentrate, under the same “umbrella” diverse and distinct conducts. Following up on debates in international scholarship and, most relevantly, discussions within the European scenario, this article provides initial suggestions for the development of an adequate legal test for the practice of self-preferencing in Brazil. We make a preliminary attempt to differentiate between diverse categories of self-preferencing and suggest, among other aspects, that tests and theories of harm existing in CADE case law should be improved and adapted to drive antitrust analysis for those practices. This is the case, for example, for the classic (or “pure”) pattern of what the scholarship has equated to self-preferencing, being possible to turn to an adaptation of the CADE’s position on the essential facilities doctrine (EFD). We argue the essentiality test should not be completely abandoned, as it stands as a relevant divisor between distinct types of self-preferencing, with relevant enforcement implications, and provide aninitial outline of an adapted legal test to assess essentiality.

The Interplay Between the Essential Facility Doctrine and the Digital Markets Act: Implications to Big Data

Today many companies are collecting and extracting data from different sources to help them with their strategic decision-making. Big data is the basis of data-driven economy, bringing significant competitive advantage and market power to companies who are able to harness and exploit its potential. Digital transformation of markets and economy challenges the existing structures of consumer protection, data protection and competition law. Data is a commodity as well as a strategic asset. The term Big data refers to the amount of data that cannot be processed in a short time by traditional informatics devices. Undertakings possessing a large scale of different data have a competitive advantage. Possible application of the essential facility doctrine to Big data issues has not attracted much attention in competition assessment. This paper will try to fill the gap by providing some insights into competition and data issues. Also, the question whether data can be considered under the essential facility doctrine will be analysed. Furthermore, it will be shown that essential facility criteria are applicable, although there is room for some adjustments to data markets. The last part of the paper will scrutinize the Digital Markets Act that tries to shed some light and clear some possible problematic behaviour of the so-called gatekeepers. The regulation leaves the conventional approach and shortens the process of tackling possible anti-competition concerns. It regulates only those undertakings that have significant impact on market and the possibility to become an important gateway in the future. When the status of a gatekeeper is established in accordance with all prescribed criteria, there will be no need to show that the elements of the essential facility doctrine are fulfilled. The essential facility doctrine will still be relevant to undertakings that are not designated as gatekeepers.

Doktrina neophodnih kapaciteta i zaštita konkurencije u Srbiji: sektor telekomunikacija

The paper discusses possibilities for the application of the essential facilities doctrine in the Serbian telecommunications sector and the consequences of that application for the protection of competition. Based on the findings in the paper, the conclusion is, among other things, that the essential facilities doctrine may be applied in different ways and under different conditions by the Regulatory Agency for Electronic Communications and Postal Services (RATEL), the Commission for Protection of Competition (KZK), as well as the Administrative Court. Furthermore, bearing in mind the existing relationship between these bodies, as well as the relationship between the law on protection of competition and sectoral regulation, we conclude that KZK should primarily apply the essential facilities doctrine, while RATEL is the one to additionally enhance competition within the sector based on the sectoral regulation.

Is the Essential Facilities Doctrine Fit for Access to Data Cases? The Data Protection Aspect

Personal data can be of great economic value for companies as it is an essential input for the offering of a wide array of services. One way for a company to obtain access to essential personal data controlled by another company is by demanding mandatory access on the grounds of the essential facilities doctrine. Such access, however, can violate the right to the protection of personal data of the data subjects if it is not based on one of the legitimate grounds for the processing of personal data set by the GDPR. Two of these grounds are especially likely to be applicable to the access to personal data mandated using the essential facilities doctrine: the interpretation of the Commission decision or the judgment of the Court of Justice ordering the granting of access as a legal obligation and the legitimate interest of the company requesting access, for such access. The anonymisation of personal data is not a viable option for the circumvention of the rules of the GDPR as anonymised personal data loses most of its economic relevance for companies. Keywords: essential facilities doctrine, right to protection of personal data, grounds for processing personal data, anonymisation of personal data, General Data Protection Regulation. DOI: https://doi.org/10.3935/cyelp.18.2022.483 This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: R Dacar, ‘Is the Essential Facilities Doctrine Fit for Access to Data Cases? The Data Protection Aspect’ (2022) 18 CYELP 61.

APPLICATION OF THE ESSENTIAL FACILITIES DOCTRINE IN THE ANALYSIS OF THE BIG DATA OPERATORS BEHAVIOR

Digital transformation of economy leads to changes in industrial markets and firms behavior on them. They begin to compete basing not on expansion of their market share but on creating a benefit for a consumer. Therefore, increase of firm competitiveness requires information about consumer preferences and behavior, which in turn leads to a changes in the role and forms of supply chain participants interaction. In such a situation, big data operators gain a competitive advantage, backed by high fixed costs of extracting value from big data, which provides monopoly power. The question arises about the possibility of considering big data and the behavior of such data operators based on the provisions of the essential facilities doctrine. The research is based on the theory of essential facilities and its application in the construction of an optimization model of big data market subjects behavior. The matter of big data attribution to essential facilities is solved basing on study of approaches to interpretation of big data and essential facilities categories, analysis of interrelation and size of big data processing costs, building a model of big data operator behavior when supplying firms on neighboring markets with processed information. It is shown that big data in processed form can be attributed to essential facilities as their collection and processing are connected to high initial costs which block possibility of their duplication by competitors. However, the peculiarity of it as essential facilities is that they do not completely limit the possibility of entering the market, but determine the competitiveness of firms in it, which causes the growth of the importance of such an entry barrier as the formation of customer loyalty. Such results raise the question of the need and ways to regulate access to big data as essential facilities, since their incorrect regulation or lack of such can lead to a decrease in the markets or supply chains performance and the effectiveness of industrial or antimonopoly regulation.

Competition Law and Digital Markets: Adaptation of Traditional Categories or New Rules? Some Reflections Arising from the Amazon Cases Regarding the Access to Non-Public Data

The present paper is intended to analyse if alleged exclusionary abuses perpetrated by big digital platforms, with particular reference to the access to non-public data dealt with in the Amazon Marketplace case, can be assessed applying the legal standards that the Court of Justice developed around the refusal to deal and the margin squeeze practices. It also shows how the new Digital Markets Act, despite representing a step forward in the regulation of the activity of these economic operators, still leaves a few questions open, especially regarding its non-sectoral approach. Finally, the interplay between access to data and privacy rules is investigated. Digital single market, digital platforms, competition law, abuse of dominance, selfpreferencing, access to non-public data, essential facilities doctrine, margin squeeze, digital markets act, GDPR

Article 102 TFEU to the rescue: filling the legal gaps of the airport slot regulation

ABSTRACT The present article analyses the competition issues that arise from the legal gaps of the Slot Regulation (95/93/EC). Although the Slot Regulation targets a just allocation system, allowing market access for all airlines, the augmenting number of congested airports in the European Union makes it hard to attribute slots to newcomers. The gaps of the Slot Regulation have led to problematic conducts such as 'slot hoarding' as incumbent carriers are aware of the financial and operational importance of these slots, and of their scarcity. The gaps have also allowed dominant airlines to engage in secondary slot trading under secretive and potentially anti-competitive terms, which may have an impact on the competitiveness of the market. The article examines the applicability of Article 102 TFEU to airlines that may abuse their dominance created by the number of slots they have under the essential facilities doctrine and the margin squeeze theory.

Discussing the Prudence Application of “Essential Facilities Doctrine” in Anti-Data Monopoly Strategies in the Digital Economy Era

As one of the most fundamental production elements of the digital economy, data has become a critical factor in determining enterprises’ competitiveness. Consequently, it is highly problematic that data monopolies frequently form in the market. Recognizing the issue, principle fourteen in “Anti-trust Guidelines on Platform Economy (Draft for Comments)” establishes a methodology for regulating data access restrictions. In addition, it reflects on the viral and debatable data monopoly problem by clearly stating that data can be perceived as an “essential facility”. In the study, it is argued that the “Essential Facilities Doctrine” has a high practical significance for regulating vertical monopoly in the traditional economy; however, it should be applied with caution under certain restrictions when dealing with data monopoly.

Recent Developments in the Essential Facility Doctrine:

Recent Developments in the Essential Facility Doctrine:

Big Data and the Essential Facilities Doctrine: A Law and Economics Approach to Fostering Competition and Innovation in Creative Industries

This article examines the growing market power of global streaming services in creative industries for video and music, and the intellectual property investments and inputs in these services. The author considers the prevalence of big data in these industries, enabling the development of highly targeted content, thereby dramatically reducing the potential of failure and mitigating the cost of investment. The author examined the suitability of traditional intellectual property laws for creative works driven largely by data inputs. The possibility of utilising the essential facilities doctrine to impose a duty to licence on these undertakings and the impact that could have on competition, innovation, incentives, and the economic functioning of creative industries is explored. 

The Essential Facilities Doctrine and the Bronner Judgment Clarified: Case C-165/19 P Slovak Telekom v Commission

Judgment of 25 March 2021 in Case C-165/19 P Slovak Telekom v Commission, EU:C:2021:239. The Court confirmed that dominant companies might be obliged to supply an input to a rival only where that input is indispensable to compete in the downstream market, but held that a lower standard applies if a dominant company already supplies the input or is subject to a regulatory obligation to do so. On 25 March 2021, the Court of Justice dismissed the appeals submitted by Slovak Telekom (‘ST’) and Deutsche Telekom against a General Court judgment concerning the Commission’s decision finding that ST abused its dominant position (Case T-851/14 Slovak Telekom v Commission, EU:T:2018:929). On 15 October 2014, the Commission adopted a decision finding that ST, the Slovak incumbent telecommunications operator, abused its dominant position by engaging in a range of practices designed to restrict access to ST’s local loop...

Большие данные как ключевые мощности в антимонопольном регулировании цифровых рынков

The article is devoted to the issue of applying the Essential Facilities Doctrine to big data for the purpose of antitrust regulation of digital markets. The concept of big data is revealed, which currently does not have a normative legal fixation in the legislation of the Russian Federation. The article identifies the difference between big data and regular data, between the organizational, managerial, economic and legal content of these phenomena of the digital age. Based on the analysis of scientific publications, law enforcement and judicial practice of antimonopoly agencies of foreign countries and Russia, the author systematizes the directions of using big data in competition in digital markets. The article also reveals the content of the doctrine of essential facilities in competition law. The author describes the key ideas of the scientific discussion on the application of the doctrine of essential facilities to big data. The article contains author’s suggestions and recommendations for the correct division of the complex of big data technology into competitive (AI) and infrastructure (data sets) components. If necessary, the doctrine of essential facilities can be extended to computing power, server data storage, data sets (in an unstructured form) of digital giants. The author believes that applying the doctrine of essential facilities to big data can eliminate the abuse of dominance by tech giants. But the application of the doctrine of essential facilities is not able to systematically change the state of affairs in digital markets. In order to remove the incentives of Internet giants to abuse dominance with the help of big data, it is necessary to separate from the Internet giants business units, that would exclusively provide non-discriminatory access to Big Data management services. And the competencies associated with the development and application of big data analytics (AI) technologies should be assigned to business units, that would compete in derivative digital markets independently.

The Essential Facilities Doctrine in the Digital Economy: Dispelling Persistent Myths

The antitrust “essential facilities” doctrine is reawakening. After decades of rejection and decline, the doctrine’s approach of granting access rights to facilities for which there is no reasonable alternative in the market has received several high-profile endorsements across the political spectrum. While courts have mainly applied the doctrine to physical infrastructure, its potential now lies in addressing the gatekeeping power of online platforms. However, despite its recent endorsements, the doctrine’s criticisms linger. Many of the objections to the essential facilities doctrine are fueled by persistent myths and misconceptions, most prominently related to its economic justification, administrability, and propensity to entrench monopoly power. This Article lays out the case for the essential facilities doctrine in the digital economy and addresses the most common counterarguments that limit the doctrine’s potential to open digital markets.

Intellectual Property, Antitrust, and Access to Essential Technologies

This article explores whether and how we may leverage antitrust law to calibrate the exploitation of intellectual property (“IP”) rights – e.g., IP licensing –to facilitate needed access to essential technologies. The motivation of the article is to help developing countries find an effective way to address their complaints that owners of IP-protected technologies refuse to license needed technologies or charge unfairly high prices. The article concludes that leveraging antitrust law to address these typical challenges developing countries experience in accessing essential technologies may be more effective than attempting to change the IP regime governed by negotiated and established multilateral instruments. The article addresses the normative question of whether we should leverage antitrust law to improve access to essential technologies and the applied question of how we may do so. In answering the first question, the article explores the conceptual linkages among IP, antitrust law, and access to essential technologies, examining the diverse approaches toward the IP-antitrust interface by multilateral, regional, bilateral, and jurisdictional instruments. In answering the second question, the article compares courses taken by three major antitrust law regimes – the U.S., the EU, and China – toward the IP-antitrust interface, refusal to license, the essential facilities doctrine, and excessive pricing. The article suggests a possible approach in using antitrust law to improve access to essential technologies and proposes corresponding guidelines for designing antitrust law provisions to achieve this purpose. The article discusses necessary balancing considerations in the implementation. It also considers the barriers developing countries need to overcome for the implementation.

An 'Essential' Solution: Reworking the Essential Facilities Doctrine to Address Big Tech’s Harm to the Marketplace of Ideas

The Big Tech firms dominate our daily lives. We feed them revenue as we feed them our attention. In return, many trust they are providing access to a wide range of content that reflects a wide range of viewpoints. This trust is misplaced. Big Tech censorship is at the forefront of modern discussion. Conservatives aver that the Big Tech gargantuans silence conservative voices by censoring conservative content. But many left-leaning individuals and businesses claim Big Tech equally censors their content as well. Both sides present compelling evidence to back their claims. This Article demonstrates that regardless of one’s political affiliations, it is indisputable that Big Tech censors a substantial amount of content. Of course, it is a normative question whether Big Tech censors too much content or favors particular viewpoints. Meanwhile, Big Tech antitrust litigation has dominated recent news columns. However, none of this litigation seeks to rein in Big Tech censorship; instead, the litigation is based simply on traditional antitrust considerations. Taking a different approach, this Article argues Congress or the courts should utilize antitrust law to deter Big Tech censorship. Antitrust law is best suited to deter Big Tech censorship because censorship causes concrete antitrust harm by impairing the marketplace of ideas. Moreover, other sources of law––such as First Amendment jurisprudence––have failed to remedy this harm. Congress or the Courts should revitalize the essential facilities doctrine to protect the marketplace of ideas and consumer welfare. By preventing the Big Tech firms from refusing to deal with content publishers based on the publishers’ viewpoints, we may finally halt Big Tech’s anticompetitive and anti-democratic behavior.