Elgar Commentaries series
Edited by Irini A. Stamatoudi and Paul Torremans
Chapter 4: THE ESSENTIAL FACILITIES PRINCIPLE AND OTHER ISSUES OF COMPETITION
Article 102 TFEU is concerned to protect freedom of competition in theEuropean Union's (EU) 'single market' or 'internal market'; competition law makes an important contribution to the goal of market integration. Article 102 (formerly Art. 82EC) has been described as, 'the legal basis for a crucial component of competition policy… its effective enforcement helps markets towork better for the benefit of businesses and consumers. This is particularlyimportant in the context of the wider objective of achieving an integrated internal market'. As articulated by AG Jacobs in Bronner, its 'principal purpose is to prevent the distortion of competition - and in particular to safeguard the interestof consumers - rather than to protect the position of particularcompetitors'. Nevertheless, where an essential facility is controlled by adominant undertaking and a competitor's ability to compete is being prevented or hindered by refusal of access to the facility, the competitor maybe able to complain to the Competition Authorities of abuse of dominance and request access as a remedy. The essential facility might be a transport terminal, infrastructure, or other transport facility, finance, a copyright licence, or access to software code. Article 102 constitutes one of three main strands of EU competition law, the others being Article 101, which regulates restrictive agreements and is relevant to copyright licensing, and the 'Merger Regulation', under which large-scale mergers and other concentrations are assessed by the European Commission.
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