(Case law of the European Commission, the European Court of Justice and the Bulgarian Commission for Protection of Competition) [1]

Eleonora Mateina[2]


This article provides an overview of the essential facility doctrine in the practice of the European Commission, the ECJ and the Bulgarian Commission for Protection of Competition.

The analysis of some of the most relevant decisions is preceded byexplanation of what an essential facility is and why such a facility is subject of modern competition law. A particular attention is dedicated to the economical reasoningof this doctrine and the history of its development.

In 2015, the Bulgarian Commission for Protection of Competition also had the chance to rule on the essential facilities in Bulgaria. The three cases initiated against electricity distribution companies, resulted in the imposition of sanctions for to unjustified high prices for access to thepillar system, owned by the companies. The Bulgarian Commission qualified the pillar system as essential facility and found thatthe access of the cable network operators to the pillars was crucial for their participation on the market for provision of cable network services. As a result, the Commission decided that the prices for access to the pillar system charged by the electricity distribution companies were considerably higher than the real costs of the service and thus represents an abuse of dominant position.

Following the review of the three recent Bulgarian decisions, the article briefly goes throughseveral key European cases on the essential facility doctrine, providing the test for abuse of dominant position by owning or using essential facility and the reasoning of the EC and the ECJ concerning the essential facility doctrine.This simplifies the assessment of ongoing cases concerning the essential facility doctrine.


Link to the article in Bulgarian language: ДОКТРИНАТА ЗА СЪЩЕСТВЕНИТЕ СЪОРЪЖЕНИЯ


[1]The following decisions are subject to review in the article: Bulgarian Commission for Protection of Competition’s Decisions № 449 dated 27.05.2015; № 450 dated 27.05.2015; № 451 dated 27.05.2015; Decision of the First Instance Court under united cases T-374/94, T-375/94, T-384/94 and T-388/94 as from September 1998; Decision of the European Commission IV/34.500 dated 21. 09. 1994 г.; Decision of the Court dated 26.11.1998 under case С-7/97.

[2]Eleonora Mateina is attorney-at-law at TsvetkovaBebovKomarevski, Attorneys-at-law. Her practice is focused on competition law, M&A and regulatory. Eleonora is LLM from Sofia University and is actively involved in the preparation of the University of National and World Economy’s team for Willem C. Vis International Commercial Arbitration Moot.