Access to essential facility

Institution Definition

"An undertaking which occupies a dominant position in the provision of an essential facility and itself uses that facility (i. e. a facility or infrastructure, without access to which competitors cannot provide services to their customers), and which refuses other companies access to that facility without objective justification or grants access to competitors only on terms less favourable than those which it gives its own services, infringes Article 106 if the other conditions of that Article are met (cf commission document). An undertaking in a dominant position may not discriminate in favour of its own activities in a related market. The owner of an essential facility which uses its power in one market in order to protect or strengthen its position in another related market, in particular, by refusing to grant access to a competitor, or by granting access on less favourable terms than those of its own services, and thus imposing a competitive disadvantage on its competitor, infringes Article 106." © Commission Decision of 21 December 1993 relating to a proceeding pursuant to Article 86 of the EC Treaty

On this topic, see the following e-Competitions special issues:

"Transport & Access to facilities: An overview of EU and national case law"

"Access to facilities in the energy sector: An overview of EU and national case law"

"Access to facilities in the telecommunication sector: An overview of EU and national case law"

See also Essential Facility

Case Comments

General Court of the European Union The EU General Court annuls the Commission Decision which fined a State-owned energy holding company for abusing its dominant position by refusing access to strategic gas infrastructures in Bulgaria (Bulgarian Energy Holding)

The General Court annuls the Commission Decision according to which the BEH Group abused its dominant position by refusing access to strategic gas infrastructures in Bulgaria* At the time of the facts, Bulgarian Energy Holding (BEH), a company wholly owned by the Bulgarian State, had several (...)

Valentina Zanda, Niharika Parshurampuria, Andreas Reindl The EU General Court annuls the Commission’s decision to fine a Bulgarian gas supplier for abuse of dominance by refusing access to strategic gas infrastructures in the country (Bulgarian Energy Holding)

In its Bulgargaz judgment of 25 October 2023, the General Court annulled a 2018 Commission decision finding that the Bulgarian BEH Group – comprised of the State-owned Bulgarian Energy Holding (“BEH”) and its two subsidiaries, the public gas supplier Bulgargaz and the gas transmission network (...)

Alain Ronzano Essential facilities: The General Court of the European Union annuls the Commission’s decision concluding that the Bulgarian gas incumbent had abused its dominant position by refusing access to strategic infrastructure for the transport of Russian gas to Bulgaria (Bulgarian Energy Holding)

On October 25, 2023, the General Court of the European Union delivered its judgment in case T-136/19 (Bulgarian Energy Holding and Others v. European Commission).. In it, the Court annulled in its entirety the Commission’s decision finding that the Bulgarian incumbent gas operator - the BEH (...)

New Zealand Competition Authority The New Zealand Competition Authority seeks views on revenue limits and service quality standards for the country’s largest telecommunications infrastructure provider (Chorus)

Commission seeks views on revenue limits and service quality standards for Chorus* The Commerce Commission is seeking views on the approach to resetting revenue limits and quality standards for Chorus, the country’s largest telecommunications infrastructure provider. Under the new (...)

German Competition Authority The German Competition Authority opens an investigation into the potential anti-competitive impediment of options for co-using radio masts in the telecommunications sector (1&1 / Vodafone / Vantage Towers)

Bundeskartellamt examines potential anti-competitive impediment of 1&1 by Vodafone and Vantage Towers* Bonn, 2 June 2023: Following a complaint filed by 1&1 Mobilfunk GmbH, Düsseldorf, the Bundeskartellamt is examining whether Vodafone GmbH, Düsseldorf or its affiliated company (...)

Petrina Broka The Albanian Competition Authority initiates a preliminary investigation on a potential abusive practice in the taxi services market for airport commuting and imposes interim measures against an international airport (Tirana International Airport)

The Albanian Competition Commission (ACC), through Decision (DCC) No. 984, dated May 11, 2023, has initiated a preliminary investigation procedure and subsequently has imposed interim measures against Tirana International Airport LLC (TIA) in the taxi services market for commuters traveling to (...)

Alain Ronzano Single concentration: The General Court of the European Union dismisses the appeals against the Commission’s decision approving the purchase of assets of an electricity supplier by an energy supplier (EVH / enercity / E.ON / RWE)

On May 17, 2023, the General Court of the European Union handed down a series of eleven judgments following actions for annulment brought by eleven local or regional suppliers of electricity generated from both conventional and renewable energy sources, against the decision of February 26, (...)

Eric Paroche, Eléonore Castagnet Cross-shareholding : The General Court of the European Union dismisses all appeals against the decision of the European Commission authorizing an acquisition among the two major German energy operators (EVH / enercity / E.ON / RWE)

In March 2018, E.ON and RWE, two major German energy operators, announced a € 40 billion transaction: (i) RWE was to acquire E.ON’s and Innogy’s assets in relation to renewable energy production; (ii) E.ON was to acquire RWE’s networks and retail activities of Innogy (a RWE’s subsidiary), (...)

Alain Ronzano Transparency: The French Competition Authority issues interim measures as it considers that the practices implemented on the advertising verification market are in contradiction with the objectives pursued by the European legislator in the DMA (Meta)

On May 4, 2023, the French Competition Authority issued a decision n° 23-MC-01 in which it issued interim measures against Meta (formerly Facebook Inc. until October 2021), which provides free services to Internet users via the social media platforms Facebook and Instagram, as well as the (...)

Valérie Lefever, Giovanni Pregno, Andreas Reindl, Elisa Binci The French Competition Authority imposes interim measures by ordering a social media giant to define new objective, transparent, non-discriminatory, and proportionate criteria to access its data (Meta)

On 4 May 2023, the French Competition Authority (“FCA”) imposed interim measures on Meta Platforms Inc., Meta Platforms Ireland Ltd. and Facebook France (“Meta”), to remedy the harm likely caused to the independent advertising verification sector and to the complainant Adloox SAS (“Adloox”) by (...)

Marie Cartapanis Interim measures: The French Competition Authority issues interim measures to put an end to practices likely to constitute an abuse of a dominant position in the online advertising sector (Meta)

A few months after committing to change its intermediation practices in the French non-search advertising market (Aut. conc., 16 juin 2022, déc. n° 22-D-12 relative à des pratiques mises en œuvre dans le secteur de la publicité sur internet, v. not. F. Marty, Engagements : L’Autorité de la (...)

Articles

Diana Moss Network Access, Regulation and Antitrust

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Laurence Idot, David Bosco, Martine Behar-Touchais, Michel Debroux, Anne-Sophie Choné-Grimaldi, Benoît De Nayer, Pierre Petillault Digital market Act: Competition law and digital giants (Nanterre, April 1, 2022)

Abstract This issue is devoted to the Digital Market Act (DMA) regulation adopted this summer and designed to closely monitor the practices and behaviors of the main players in the digital economy. This regulation aims to remedy the supposed flaws and failures of ordinary competition law, by (...)

Adrien Giraud, Guillaume Blanc Interim measures in France: A really enviable model?

The Commissioner for Competition, Margrethe Vestager, considers tougher enforcement with respect to interim measures and eyes the French regime with interest. It is now established that the French Competition Authority enjoys wide powers to adopt decisions ordering interim measures. This study (...)

Anne Jussiaux Disputes on network access before the French energy regulator

The achievement of the internal energy market is based on the network access. In order to ensure an efficient and non-discriminatory access to the network, the French energy regulator has the competence to settle disputes between the transmission or distribution system operators and the (...)

Events

Richard Whish, Renato Nazzini, Luisa Affuso, Andriani Kalintiri, Mike Walker, Jonathan W. Scott, Pierre Régibeau, Birthe Panhans, Gönenç Gürkaynak, Oliver Latham, Ingrid Vandenborre, Paul Reeve, Douglas Melamed, Soledad Pereiras, Antonio Buttà, Miguel de la Mano, Justin Coombs, Pat Treacy, Dr. Christophe Carugati Innovation Economics Conference for Antitrust Lawyers

The 6th “Innovation Economics Conference for Antitrust Lawyers” organised by Concurrences at King’s College London, in partnership with Compass Lexecon, Charles River Associates, Elig Gürkaynak Attorneys-at-Law, Meta, RBB Economics and Skadden.

Rod Carlton, Niamh Dunne, Giulio Federico, Gönenç Gürkaynak, William E. Kovacic, Rameet Sangha Innovation Economics Conference for Antitrust Lawyers #2 Self-Preference: The Gatekeeper Role

2nd Webinar of the « 4th Innovation Economics Conference » organised by Concurrences, in partnership with Compass Lexecon, Elig Gürkaynak Attorneys-at-Law and Freshfields, with Rod Carlton (Partner, Freshfields), Niamh Dunne (Assistant Professor, London School of Economics), Giulio Federico (Head of Unit - CET, DG COMP), Gönenç Gürkaynak (Partner, ELIG Gürkaynak Attorneys-at-Law), William E. Kovacic (Professor, King’s College London | Non-Executive Director, CMA| Professor, George Washington University) and Rameet Sangha (Senior Vice President, Compass Lexecon).

Books

Grands arrêts du droit de la concurrence - Régulations 5.2 Transport routier

547 2 Transport routier 2.1 Organisation générale Loi n° 2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des chances économiques, JORF n°0181 du 7 août 2015 Le Parlement adopte la loi Macron libéralisant le transport routier interurbain de personnes La loi n° 2015-990 du 6 (...)
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