The first aim of this paper is to establish the Essential Facilities Doctrine’s (EFD) undeniable existence in EC law and to determine how its application has evolved over time by analysing the relevant case law. By outlining the legal theory of the EFD, Part I shows that the Doctrine is a well-established competition law remedy within the refusal to supply framework of Article 82 EC. This paper argues that the EFD should be an exceptional measure, only applied after careful balancing of the dominant undertaking’s freedom of contract and right to property against the potential benefits to consumer welfare. By investigating how the EFD has been applied practically in refusal to supply case law, the second half of Part I identifies the different criteria under which refusal to grant access to an essential facility was deemed to constitute an abuse, and concludes that the circumstances in which the EFD was initially applied were not consistent. It is submitted that it was not until the Bronner Judgment that the EU institutions began applying the EFD to refusal to supply cases within a coherent and sufficiently strict legal framework.
Part II will deal with the second aim of this essay, namely to evaluate the legal evolution of the Doctrine’s controversial application to Intellectual Property Rights (IPRs). Because compulsory licensing of IPRs can have grave negative repercussions on innovation and consumer welfare, this paper maintains that the EFD’s application to IPRs should be exceptional and subject to the strictest of conditions. It accordingly supports the notion that IPRs require special deference in comparison to physical property rights, and notes that the EFD is applied to IPRs under stricter legal standards than when applied to other property rights. The second half of Part II investigates the Doctrine’s application to refusal to licence cases. This paper identifies that there has recently been a significant and regrettable attenuation of the abovementioned stricter standards since the criteria of the exceptional circumstances test under which the EFD results in compulsory licensing have been indefensibly widened following the landmark Microsoft Judgment.
Inhaltsverzeichnis (Table of Contents)
- Introduction
- Part I: The Essential Facilities Doctrine and EC Law – Origins and Trends in Refusal to Supply Cases
- 1.1 EFD Lies Within the Refusal to Supply Framework under Article 82 EC
- 1.2. Evolution of the Application of the EFD in Refusals to Supply Case Law
- Part II: The Essential Facilities Doctrine and Intellectual Property Rights – Evolution in Refusal to Licence Cases
- 2.1. The Interface Between Competition Law and Intellectual Property Law and the Need for Stricter Standards
- 2.2. Evolution of the Application of the EFD in Refusals to Licence Case Law
- Conclusion
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This paper aims to demonstrate the existence of the Essential Facilities Doctrine (EFD) in EC law and to trace its evolution through analysis of relevant case law. The paper explores the legal theory of the EFD, arguing that it is a well-established competition law remedy within the refusal to supply framework of Article 82 EC. It also examines the application of the EFD to intellectual property rights, acknowledging its potential impact on innovation and consumer welfare. Key themes of the paper include:- The Essential Facilities Doctrine and its role in EC competition law
- The evolution of the EFD's application in both refusal to supply and refusal to license cases
- The balance between the freedom of contract and right to property of dominant undertakings and the potential benefits to consumer welfare
- The unique considerations surrounding the application of the EFD to intellectual property rights
- The potential risks of applying the EFD too broadly and the importance of a strict legal framework
Zusammenfassung der Kapitel (Chapter Summaries)
- The introduction establishes the paper's two main objectives: to demonstrate the existence of the EFD in EC law and to analyze its evolution over time. It emphasizes the importance of the EFD as a competition law remedy within the refusal to supply framework of Article 82 EC.
- Part I delves into the EFD's origins and application in refusal to supply cases. It argues that the EFD should be applied exceptionally, only after careful consideration of the dominant undertaking's freedom of contract and right to property. The section then traces the development of the EFD's application in case law, highlighting the different criteria used to determine whether refusal to grant access to an essential facility constitutes an abuse.
- Part II focuses on the EFD's controversial application to intellectual property rights (IPRs). The section acknowledges the potential negative consequences of compulsory licensing on innovation and consumer welfare, advocating for strict conditions for applying the EFD to IPRs. It further discusses the stricter standards applied to the EFD in IPR cases compared to other property rights, highlighting the recent relaxation of these standards in light of the Microsoft Judgment.
Schlüsselwörter (Keywords)
This paper explores key concepts within European competition law, particularly focusing on the Essential Facilities Doctrine (EFD), Article 82 EC, refusal to supply, refusal to license, intellectual property rights (IPRs), dominant undertakings, consumer welfare, innovation, and case law analysis.- Quote paper
- Veronica Hagenfeldt (Author), 2009, EC Competition Law - The Essential Facilities Doctrine, Munich, GRIN Verlag, https://www.grin.com/document/169622
