Obowiązek udostępnienia urządzenia kluczowego w świetle wspólnotowych reguł konkurencji

The essential facilities doctrine is a powerful tool for compelling dominant undertakings to share their products or services when these inputs are indispensable for another undertaking to perform business activity. The main objective of the essential facilities doctrine is to stimulate competition in related markets. However, due to its divergent effects, the doctrine should be applied carefully. The central focus of this article is on the two issues of a great practical significance – legitimate business justifications of the refusal to deal and terms under which compulsory access should be granted.

Once the facility has been determined to be indispensable, the next question is whether the refusal to supply is objectively justified. There are two different kinds of justifications – of 'micro' and 'macro' level. From the micro point of view the circumstances of the particular owner of the facility are relevant. This article points out that the concept of objective justifications at a micro level involves also that of proportionality. At the macro level, in turn, the pro-competitive impacts and negative effects of the doctrine should be balanced. It follows that while deciding about the compulsory access to the facility, the allocative and dynamic efficiencies should be considered and the doctrine should be applied only when benefits to competition outweigh the costs of antitrust intervention.

The second important issue addressed by this article relates to the terms of mandatory access to essential facilities. The main conclusion is that it must be provided on a nondiscriminatory basis and at a reasonable price. This article outlines that also the mandated terms are crucial for the static and dynamic competition.