*This article is an automatic translation of the original article, provided here for your convenience. Read the original article.
What should be done when the exercise of an economic activity is only possible on the condition of being able to use a good, infrastructure, information or even a service held by an economic operator who refuses its access to potential competitors? One option is to oblige this economic operator to grant access on reasonable and non-discriminatory terms. This solution, known as the essential facilities theory, was first applied by the United States Supreme Court in its Terminal Railroad ruling (1912), then by the European Court of Justice in its Commercial Solvents ruling (1974), before being widely used by the courts and competition authorities of most States that have opted for a market economy. By limiting the exercise of the right of ownership, recourse to this jurisprudential theory makes it possible to build and preserve competition.
Pervasive in the process of liberalisation of network industries driven by the Community institutions, essential facilities theory is also the stumbling block between competition law and intellectual property law as illustrated by the Microsoft case. Between ex ante and ex post regulation, this theory is emerging as a modern legal tool whose contours nevertheless remain uncertain.
