ECJ on the essential facilities doctrine

Apr 14, 2021 Benn-Ibler Rechtsanwälte

According to the case law of the European Court of Justice (ECJ), under certain circumstances a company abuses its dominant position if it denies competing companies access to its infrastructure. In a dispute in the telecommunications sector, the ECJ had to examine this case law in a case where the company granted access, but only under "unreasonable conditions".

Slovak telecommunications provider Slovak Telekom a.s. has copper and fibre networks in Slovakia and offers broadband services to customers.

Competing companies that also wanted to offer communications services could gain access to the network of Slovak Telekom a.s. for a fee. In the view of the EU Commission, however, Slovak a.s. imposed "unfair conditions" and used "unfair tariffs".

The Commission considered this to be an infringement of the prohibition of abuse of a dominant position and imposed a fine on Slovak a.s. and its parent company (Deutsche Telekom).

The two companies contested the fine arguing, among other things, that the Commission had failed to prove that the networks of Slovak a.s. were essential facilities for competing companies to enter the market in the first place.

The ECJ rejected this argument. From the ECJ's point of view, the essential facilities doctrine only concerns the case where the company (entirely) refuses to grant competing companies access to indispensable infrastructure.

However, if - as in the present case - the company does grant access, but makes this access subject to unreasonable conditions, this may already constitute an abuse of a dominant position, without the indispensability of the infrastructure having to be specifically proven.

In this case, it is sufficient that the unreasonable conditions are capable of producing anti-competitive effects on the markets concerned.

ECJ C 152/19 P, judgment (25.03.2021)

ECJ C-165/19 P, judgment (25.03.2021)