In (EU) antitrust law, the so-called “Essential Facilities Doctrine” is meant to ensure that essential facilities remain accessible to all market players. Traditionally, key infrastructure like ports, airports, rail networks or gas pipelines were treated as essential facilities. However, the notion of what kind of facilities are indeed essential has expanded lately – evidenced by a recent judgement declaring a race track to be an essential facility. Time to look at the doctrine and what it means today.
There is rich case law on the essential facilities doctrine (Bronner and Magill are textbook classics). But the style of this blog is not to walk through all the details at length, but to keep things relatively short and on point. So, I will restrict myself to an overview of the basics, an observation of how the application of the essential facilities has expanded, and a summary of the recent judgement.
The basics
The Essential Facility Doctrine pertains to situations where access to a particular facility or resource is deemed indispensable for effective competition in a given market. The doctrine aims to prevent the abuse of dominant positions by companies controlling such essential facilities.
The doctrine is an exemption from the general freedom of companies to contract with whomever they wish. Thus, the doctrine has traditionally been interpreted narrowly. Essential facilities must be indispensable, difficult to duplicate and denying access must significantly impede competition.
A (politically driven) expansion of the doctrine
The essential facilities doctrine has been and still is the subject of much debate, and the case law of the European courts is interpreted by many as having expanded the doctrine to varying degrees. For example, the European Court of Justice found in the past that IP rights can be essential facilities (IMS Health) and the EU’s General Court ruled that interoperability information can be an essential facility (Microsoft). At the beginning of this year, the Court of Justice clarified that removing certain facilities – in this case 19 kilometres of rail tracks – can also be an abuse of a dominant position (Lithuanian Railways).
In Germany, politics and the legislator stepped in and expanded the law to say that in particular data, networks and other infrastructure facilities can be essential facilities. This goes beyond (at least written) EU antitrust rules (leaving aside things like the Digital Markets Act and the Data Act).
A race track as an essential facility
In an interim injunction proceeding, a German regional court recently found that a race track can be an essential facility. The claimant in the case organized a series of long-distance races on the track and had been denied access for the coming year.
The judgement is based on German antitrust law and holds that the race track in question is an essential facility because it is unique and not substitutable by other race tracks. In this respect, it is important to note that while the race track is the famous Nürburgring, parts of which are also called “the green hell”, there are a number of other race tracks in Germany. Without going into too much detail, the judgment is a good example for how the Essential Facility Doctrine gives the regulators and the courts some discretion and in turn flexibility to also tackle somewhat unusual cases.
Looking ahead
In the past, infrastructure captured by the Essential Facilities Doctrine ended up being covered by industry regulation like, e.g., for telecommunication networks or energy. In the tech space, one can currently observe the same “phenomenon”, with the one small but significant difference that there seems to be limited case law on applying the Essential Facilities Doctrine in the tech context (with prominent exceptions). To some extent, we seem to be skipping the part of first applying the Essential Facilities Doctrine to instead move directly to regulation.
Nevertheless, one should expect the Essential Facilities Doctrine to stay a very relevant area of antitrust and more cases that try to expand the definition of an essential facility – including via private litigation.
Antitrustpolitics.com 