Commerial Law
Antonio Gallo Palenzuela
Explain the concept of essential facilities and asses whether or not it pushes competition law too far.
Professor Philip Areeda, professor at Harvard University who was considered as the foremost expert on antitrust law, wrote “It is less a doctrine than an epithet indicating some exceptions to the right to keep one’s creation to oneself, but not telling us what those exceptions are”[1].
The essential facilities theory finds its beginning in the other side of the Atlantic, in the United States of America, and it is legitimated under the section 2 of the Sherman Act(§2 – Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a felony…[can be individuals]). This section is one of the most common weapon against the monopoly in U.S.A as long as it is chosen as the starting point for the theory we are going to study. This theory finds its place in Europe in the article 82 (ex article 86) of the EC Treaty: Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such
Explain the concept of essential facilities and asses whether or not it pushes competition law too far.
Professor Philip Areeda, professor at Harvard University who was considered as the foremost expert on antitrust law, wrote “It is less a doctrine than an epithet indicating some exceptions to the right to keep one’s creation to oneself, but not telling us what those exceptions are”[1].
The essential facilities theory finds its beginning in the other side of the Atlantic, in the United States of America, and it is legitimated under the section 2 of the Sherman Act(§2 – Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a felony…[can be individuals]). This section is one of the most common weapon against the monopoly in U.S.A as long as it is chosen as the starting point for the theory we are going to study. This theory finds its place in Europe in the article 82 (ex article 86) of the EC Treaty: Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such
Bibliography: -WHISH R., Competition Law,5th edition, London, Lexis-Nexis UK, 2003 -SULLIVAN E., The political economy of the Sherman act, New York, Oxford University Press 1991. -HYLTON K.N., Antitrust Law: economic theory and common law evolution, Cambridge Cambridge University Press, 2003. -BRADGATE R. & WHITE F., Commercial Law, Oxford, Oxford University Press, 2005 -FOIDART M, The application of the essential facilities doctrine t the telecommunications sector,1996