‘The essential facility doctrine originated in the United States in a case brought under the Sherman Act in 1912. The European Union has also developed a corresponding doctrine which has been applied to infrastructural facilities such as ports. In practice, the essential facility doctrine is usually applied where the dominant position is either ‘an act of God’, i.e. caused by geographic conditions, or first mover advantages, e.g. an incumbent’s telecommunication network’.
‘Over the years, there are some criteria that have been enunciated in court cases and have become guidelines in the assessment of what should be ruled an essential facility. These criteria can be summarized in the following four points:
- The facility must be controlled by a dominant firm
- Competing firms must lack a realistic ability to reproduce the facility
- Access to the facility is necessary in order to compete in the related market
- It must be feasible to provide access to the facility’