Comparative Study On The Essential Facilities Doctrine In The European Union And United States Antitrust Law And Its Revelation

The essential facilities doctrine is an important principle in the field of antitrust.Many scholars believe that it originated from the case United States v. TerminalRailroad Association of St. Louis in1912, but it didn’t used the term of “essentialfacilities” in the case. Until1982, the Court of Appeals for the Seventh Circuitdiscribed this principle in case of MCI, and listed four standards. Although theSupreme Court did not directly introduce the concept of the essential facilitiesdoctrine, but the Federal Circuit Court of Appeals widely used this principle, therefore,it has actually become one of the effective tool of U.S. antitrust laws. The principle inthe European Union applied later, it developed from the European Commission in thedetermination of two cases in the early1990s. In Magill, the European Court ofJustice applied this principle in the field of intellectual property rights for the firsttime in1996, and put forward the standard of new products, In Oscar Bronner, theECJ even put forward a series of standards in1998.Although the principle has developed for more than one hundred years, andreceived significant attention of courts and scholars, but has not a precise definitionalthough their basic definition is very similar. Because the two regional relevant legalregulation and considerations for free market competition mechanism is different,their scope of application and applicable standards are different. In terms of theapplicable scope, the United States believes that the principle is the exception of thefree trade, while the EU reckons that the principle is the general principle of trading.In terms of the applicable standards, EU and the United States have differentprocessing methods with a common dominance, the United States does not emphasizethe new product requirements, and doesn’t need two related markets.Our Antitrust law borned in2008, is very young. Whether it’s in order to regulatethe natural monopoly, protect consumer welfare, or to safeguard the interests of thestate, it is necessary for our country to introduce the essential facilities doctrine. First,we need to define the meaning of “essential facilities”: the facility must beindispensable for competitors to participate in the competition, and competitors can’tcopy or replicate the facilities economically. On the basis of “essential”, according tothe status of the economic development in our country and our enterprises ’ position inthe international, we should draw lessons from the European Union in the scope of general principle. Finally, Combine the mature experience of European Union and theUnited States, the application of the principle in our country should meet thefollowing five standards: Enterprises with essential facilities have a dominant marketposition; no effective substitutes; refused to access without reasonable businessjustification; allow to access is feasible; allow to access can promote competition andenhance consumer welfare.