The Essential Facilities Doctrine Before the European Community Courts: Ostracized or Expanded?
Bibliographic record
Abstract
The European Community Courts have in numerous instances applied Article 82 EC so as to hold unilateral refusals by dominant undertakings to supply goods or services, to allow access to facilities or to license intellectual property rights towards third parties as being abuses of those undertakings’ dominant position. Such abuses have come to fall within what is known as the doctrine of ‘essential facilities’, a doctrine explicitly articulated only in judgments of US courts and decisions of the European Commission. This article argues that, in the wake of the Microsoft Judgment of the Court of First Instance, the doctrine does not merely exist in European jurisprudence, but has indeed received a careful and sophisticated expansion on behalf of the Community Courts over the last three decades, regardless of the American judicature’s parallel approach. Following a brief revisit of the propositions expressed by Advocate-General Jacobs in his Opinion for the Bronner case, the article’s conclusions are extracted by comparatively applying the criteria established in the ECJ’s Judgment for the same case over landmark case-law of relevance, such as, inter alia, the preceding Commercial Solvents and Magill and the more recent IMS and Microsoft rulings.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.003 | 0.000 |
| Scholarly communication | 0.001 | 0.001 |
| Open science | 0.001 | 0.000 |
| Research integrity | 0.000 | 0.004 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".