A Comparative Study On The Application Of The Essential Facilities Doctrine In Data Antitrust Between The United States And The European Union

The essential facilities doctrine originated in the United States and is mainly used to regulate the anti-competitive behavior of refusing to deal.With the advent of the digital age,a number of giant technology companies have been born.In order to obtain more monopoly profits,they abuse their dominant market position and refuse to open and share data,hindering effective competition in the relevant market.The essence of refusing to open and share data is refusing to deal.Although the EU’s latest jurisprudence has applied the essential facilities doctrine to data antitrust,there is still controversy over the necessity of applying the essential facilities doctrine to data antitrust in academia.Through the analysis of the particularity of the data anti-monopoly field,the in-depth understanding of various academic disputes,and the review of judicial practices in the United States and the European Union in recent years,it is clear that the application of the essential facilities doctrine in data anti-monopoly is indeed necessary.How to apply the essential facilities doctrine is followed.During the years of development of the essential facilities doctrine,the United States and the European Union have formed their own relatively operable elements of the essential facilities doctrine in judicial practice.However,the two elements differ in their focus.The comparative analysis of the requirements can make reasonable suggestions for the application of the essential facilities doctrine in data anti-monopoly in China.At the same time,due to the particularity of data,refusal to open and share data may also affect other countries’ domestic market competition,thus triggering the discussion of the extraterritorial application of the essential facilities doctrine in data anti-monopoly.The anti-competitive behavior of refusing to open and share data can be better regulated only by having a reasonable jurisdictional basis,ensuring that the exercise of jurisdiction is conflict-free,and exploring broader international cooperation.Considering that China’s digital economy has become one of the core growth poles of the national economy,cases of "super platforms" refusing to open and share data have already appeared.Through a comparative study of the application of the US and EU’s essential facilities doctrine in data anti-monopoly,it is expected to provide reasonable suggestions for the application of China’s essential facilities doctrine.The first chapter of this paper discusses the necessity of applying the essential facilities doctrine in data antitrust.Compared with traditional anti-monopoly,data anti-monopoly is special.The "user feedback loop" and "monetization feedback loop" of data enable large data companies to continuously optimize their products or services.The gap between small data companies and large data companies will grow wider.It is also easier for data monopolies to use data as leverage to transfer dominance from one market to another.Data can constitute a barrier to market entry,refusal to open and share data is salvageable,and forcing it to be open and shared does not detract from innovation.In hi Q v.Linked In and Microsoft v.Commission,the US and EU courts both hold negative attitudes towards refusing to open and share data.Therefore,it is necessary to apply the essential facilities doctrine in data antitrust.The second chapter discusses elements of the application of the essential facilities doctrine in data antitrust.Although there are relevant cases in the United States,the US courts have not clearly given the elements for the application of the essential facilities doctrine in data antitrust in the case.Based on the constituent elements formed by the US court in the MCI case,the applicable constituent elements of the US essential facilities doctrine in data antitrust are deduced: first,the data is controlled by a monopoly;second,the data cannot be reasonably copied;third,the monopolist refuses the competitor to use the data;fourth,it is feasible for the monopoly to open and share the data.Unlike the United States,the EU has clarified the relevant elements in Microsoft v.Commission.First,data is indispensable;second,refusal will exclude all effective competition in downstream markets;third,refusal hinders the emergence of new products;fourth,there is no objective reason for the refusal.Although the constituent elements are different,they are all reasonable actions under the national conditions and anti-monopoly objectives.The third chapter discusses the extraterritorial effect of the essential facilities doctrine in data antitrust.Considering that the refusal of enterprises to open and share data will not only affect the fair competition in the domestic market,but also may affect the fair competition in the domestic market of other countries,which leads to the extraterritorial application of the essential facilities doctrine in data antitrust.The United States provides the basis for jurisdiction based on the effect doctrine,and applies the principle of negative comity to avoid jurisdictional conflicts.At the same time,the extraterritorial application of the essential facilities doctrine for the signing of antitrust bilateral cooperation agreements in data antitrust is more unimpeded.The EU tries to avoid conflicts in the application of the essential facilities doctrine in data antitrust through the progressive jurisdictional basis of the implementation approach,the principle of economic entity,and the effects doctrine.At the same time,the high consistency of countries within the EU makes the application of the essential facilities doctrine unimpeded in the region.The fourth chapter analyzes the application of China’s essential facilities doctrine in data anti-monopoly.From the legislative system of China’s anti-monopoly law and the handling of judicial cases,it is necessary to apply the essential facilities doctrine in China’s data anti-monopoly.Combining the constituent elements of the United States and European Union,this paper proposes a more comprehensive and strict application of the essential facilities doctrine in China’s data anti-monopoly.First,the data is indispensable;second,the monopolist refuses to open the data and the refusal will eliminate the effective competition in downstream markets;third,there is no legitimate reason for monopolists and it is feasible to open and share data.In the extraterritorial application of the essential facilities doctrine,China should learn from the EU’s practice and use the principle of effect carefully and resolve extraterritorial application conflicts on the basis of progressive jurisdiction.However,the gap between neighboring countries is too large,for China,compared to regional cooperation,it is more reasonable to sign an anti-monopoly bilateral cooperation agreement to promote the extraterritorial application of the essential facilities doctrine in data anti-monopoly.