Essential Facilities Doctrine and Intellectual Property Rights: Approaches under the Competition Law

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2016 (EN)
Essential Facilities Doctrine and Intellectual Property Rights: Approaches under the Competition Law (EN)

Demiroglou, Aristeidis (EN)

School of Economics, Business Administration and Legal Studies, LLM in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law (EL)
Truli, Emmanouela (EN)
Masouros, Pavlos (EN)
Komnios, Komninos (EN)

The essential facilities doctrine is a theory first developed in US, according to which an undertaking can demand access to a facility controlled by another undertaking under reasonable terms, if this facility is essential for access of the requesting undertaking to a specific market. The essential facilities doctrine in EU Law is applied under article 102 TFEU, as a special case of refusal to supply. With regards to IP rights which provide their owner with the power of exclusivity, the application of the doctrine first requires the resolution of conflicts between Competition Law and IP Law. Furthermore, special attention should be paid to the economic considerations behind this legal conflict. These issues are analyzed in the light of landmark cases of EU Courts. First in Oscar Bronner Case, although not related with IP rights, European Court of Justice (ECJ) determined the general conditions for the application of the doctrine. The requested facility should be indispensable, the refusal to supply by the dominant undertaking should eliminate competition in the relevant market and must not be objectively justified. In Magill Case, which was the first case before EU Courts concerning the application of the doctrine on IP rights, the Court applied the Bronner conditions and introduced the condition according to which the refusal to license should impede the appearance of a "new product". Afterwards, in IMS Case, the doctrine was applied on a copyright protected structure and Magill exceptional circumstances test was further interpreted. Last but not least, in Microsoft Case, the Court of First Instance (CFI) considered the refusal of Microsoft to supply IP protected information concerning the interoperability of workgroup servers as abusive and introduced a new dynamic in the interpretation of the doctrine’s conditions, significantly on the notion of elimination of competition and of new product. The dissertation ends with an overall assessment of the state of law followed by remarks on the application of the doctrine. (EN)


Essential facilities doctrine (EN)
Competition Law (EN)
Refusal to license (EN)
Intellectual Property Law (EN)

Διεθνές Πανεπιστήμιο της Ελλάδος (EL)
International Hellenic University (EN)



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