Rethinking the essential facilities doctrine for the EU digital economy

The essential facilities doctrine forms an important part of EU competition law.
Although it has not been used recently in EU competition enforcement, the doctrine is regularly referred to in EU policy discussions as a tool to open up markets in which ‘tech giants’ act as gatekeepers to businesses and consumers. Considering that the digital economy is not driven by physical infrastructures, such as the bridges in the US Terminal Railroad case from which the essential facilities doctrine originates, other assets like data or rankings – considered as the backbone of many digital markets – may become the subject of essential facilities claims. The article explores how the essential facilities doctrine can be rethought in order to be effectively applied to such assets in the EU digital economy. Attention is paid to market characteristics, the recent Google
competition cases seemingly bypassing the essential facilities doctrine, and legislative and policy developments regulating access outside EU competition law. To revive the essential facilities doctrine for the EU digital economy, suggestions are made as to how its application can be better aligned with the underlying economic interests at stake.