Des critères d'application de la théorie des facilités essentielles dans le cadre de la politique de concurrence européenne

The essential facilities doctrine (EFD) involves antitrust liability for a dominant firm, when an access refusal to one of its asset could exclude an actual or a potential competitor from the market. First used for network industries' infrastructures, the EFD was progressively extended to intangible assets, as intellectual property rights. The European practices sharply contrast with US Antitrust positions. Mandatory access decisions could induce significant adverse effects on investment incentives for both dominant firm and its competitors. In order to assess such risks, we analyzed in this paper the criteria used in the European competition case law. We highlight the potential consequences of their ambiguity and their subsequent plasticity. Legal uncertainty could flow from such ambiguity both for dominant undertakings and competition authorities. As a powerful tool for regulate the competition, the EFD is nevertheless implemented through alternative channels, such as commitment procedures.