The essential facilities doctrine : an appropriate antitrust remedy or an undue restriction on freedom to contract?

Abstract

The freedom to choose one's own trading partners is an important pillar in the European Union's market economy. Nevertheless, this is sometimes restricted by competition policy which aims to secure a general level of free and genuine competition. This thesis seeks to analyse the conflict between an undertaking's freedoms to contract and to dispose freely of property and the need for antitrust intervention in order to protect competition in the market. The essential facilities doctrine is generally applied in situations where the owner of an essential facility which is dominant in a primary market, refuses to provide access to such facility in order to prevent rival undertakings from operating in the downstream market where the facility holder also operates. This would happen because an essential facility is generally an asset or infrastructure which is indispensable for other undertakings to be able to produce goods or provide services to their customers. Such indispensability stems from the fact that such facilities are usually very difficult to be duplicated. The aim of this thesis is to analyse the essential facilities doctrine in terms of its procompetitive and anti-competitive effects in order to determine whether it is really a necessary antitrust remedy or whether its harmful effects on incentives to invest and innovate make it an undue restriction on freedom to contract.