Divergences transatlantiques en matière d'application de la théorie des facilités essentielles aux actifs immatériels

While the US Supreme Court, throughout its judgment in Trinko, rejects the essential facilities doctrine, in the European Union it is not only accepted but even extended to intangible assets. Two contradictory conceptions of competition prevail on either sides of the Atlantic, with regard to the importance of market structures and the question of incentives to innovate. As a pertinent illustration of these different conceptions of competition policies, the Microsoft case seems very eloquent. This article sets out the grounds of the US and EU antitrust authorities? decisions in regard to refusal to deal litigations. In this way, we will spotlight the dominant economic doctrines on both sides of the Atlantic.