10 Colum. J. Eur. L. 491 (2004)

Sébastien J. Evrard, Associate in antitrust and government regulation areas, Jones Day, Burssels.

This article analyzes the “essential facilities doctrine,” under EC law, as it stands six years after the Court of Justice of the European Communities’ decision in Bronner and subsequent cases.

The essential facilities doctrine imposes on owners of essential facilities a duty to deal with competitors. The doctrine was first developed in the United States. Its roots originate in the Terminal Railroad Combination case of 1912.

Under EC law, the development of the essential facilities doctrine has been based on Article 82 of the EC Treaty. This provision prohibits abuses of dominant position within the common market. A refusal to deal can indeed constitute an abuse of dominant position under Article 82.

The Court of Justice first dealt with refusals to deal in the case of Commercial Solvents. It has never, however, explicitly used the term “essential facilities.” In 1998, the Court of Justice issued its decision in Bronner. In this article, I will explain the two ways in which Bronner is a catalyst.

First, Bronner restricts the scope of the essential facilities doctrine by limiting its application to situations in which the owner of a facility holds more than a dominant position. Bronner requires that a facility be indispensable. In this article, I will explain that despite this formal criterion, the Bronner opinion could be interpreted more broadly. Second, Bronner imposes the application of a forward-looking test, which asks whether the refusal to deal will lead to monopolization of a downstream market. The test imposed by Bronner, therefore, transforms the conceptualization of abuse of dominant position detailed in Article 82 of the EC Treaty toward the concept of monopolization embodied in Section 2 of the Sherman Act.

In the first part of this article, I will consider the case law leading up to Bronner. In Part II, I will examine the Court of Justice’s decision in Bronner and explain the criteria developed by the Court for applying the essential facilities doctrine. In Part III, I will apply the Bronner criteria to the earlier case law in order to determine whether a different result would have been reached post-Bronner. I will conclude that Bronner imposes a stricter test of the essential facilities doctrine. Next, in Part IV, I will consider whether the post-Bronner case law persisted in applying the Bronner doctrine. I will conclude that the Commission and the Court’s subsequent decisions are consistent with the principles developed in Bronner. Finally, in Part V, I will consider when courts are likely to apply the doctrine and when they will deem a refusal to deal to be justified. Part V indicates that courts have followed a more liberal interpretation of Bronner.

This article uses the term “facilities” in a broad sense. I use the term to include infrastructures such as ports, intellectual property rights, and legal monopolies.