Essential facilities doctrine

The essential facilities doctrine is a native of the U.S. competition law doctrine that postulates a dominant companies to contract in certain circumstances. She wants to secure competition by the owner of the provision of certain services or the manufacture of certain products or information essential facilities ( essential facilities ) is forced, under certain conditions, to grant its competitors for a reasonable fee or license rights for these same facilities or information.

The essential facilities doctrine has now also found in European competition law input. The conditions are different in the U.S. and in the EU, being stronger parked in American law on negotiations between the parties.

In Europe will be required for the application of the doctrine commonly,

• That the company that asks for the right to use, intends to offer to a dependent of the use of the essential facility market new products or services that are not offered by the owner of the essential facility and for which there is at least a potential consumer demand,
• That the refusal to grant the right of use does not take place on objective grounds, and
• That the refusal is such as the owner of the essential facility to reserve the dependent market, by eliminating all competition on that market (see ECJ, Case C-418/01, 29 April 2004, IMS Health / NDC Health, Rz 52 ).

In the wake of liberalization within the EU, the doctrine has become very important. In Germany especially large networks ( energy, telecommunications, transport) are affected. They are regulated and monitored to prevent competitive abuses by the Federal Network Agency ( FNA ), headquartered in Bonn.