The Essential Facilities doctrine began as an effort to balance the efficiency of asset-sharing against the need to promote competition. In practice, however, judges have nearly always ignored sharing except to the limited extent that it impacted competition. This bias was not particularly harmful in the Old Economy, where network effects were rare and scale economies limited. But product performance in the Digital Economy often depends on sharing just as much, and sometimes more, than competition. This should remind us to take the frequently subtle tradeoff between sharing and competition seriously. The European Commission’s Digital Markets Act (2022) has made the issue still more salient. Requiring judges to consider the benefits of sharing coequally with competition would go a long way toward rationalizing essential facilities case law on both sides of the Atlantic.
By Stephen M. Maurer[1]
Like most areas of law, antitrust constantly raises new and unexpected fact patterns, followed by frantic scrambles as judges and scholars propose doctrines to fill them. Usually these proposals are either discarded or become standard within a few years. Not so the essential facilities doctrine. It has been fifty years since Prof. A.D. Neale first proposed the idea,[2] while the Supreme Court cases he relied on go back over a century. Yet his suggestion remains in limbo, neither fully recognized nor altogether extinct. The critics are at least superficially right to
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