Antitrust Chronicle® – Essential Facilities

Dear Readers,

The essential facilities doctrine provides a generally recognized basis for imposing antitrust liability for unilateral refusals to deal. Classically, it has been claimed that a monopolist that denies a competitor access to an input considered an “essential facility” violates section 2 of the U.S. Sherman Act or Article 102 TFEU (and its national equivalents) in the EU, though in Europe the concept is termed as a “refusal to deal” or a “refusal to supply.” 

The concept finds its origins in caselaw dating back to the “gilded age” of alleged robber barons. In United States v. Terminal Railroad Association (1912), the U.S. Supreme Court required Jay Gould and others who maintained control over railroad bridges that crossed the Mississippi River to provide access to any competitors who wished to cross. Over the years, Courts and enforcers have invoked the concept in diverse industries ranging from railroads to recreational skiing, energy, groceries, photocopying, newspaper distribution, telecommunications, and professional sports, to name just a few. The popularity and acceptance of the concept has ebbed and flowed over the years, perhaps finding its nadir in the well-known cases of  Verizon v. Trinko (2004) in the U.S., and Oscar Bronner v. Mediaprint (1999) in the EU, though it enjoyed a brief resurgence in the time of the EU Microsoft case.  

As the contributors to this Chronicle note, the notion of essential facilities is