COMPETITION • EUROPEAN LAW • ABUSE OF DOMINANT POSITION
The refusal by an undertaking in a dominant position to provide access to an essential facility i.e. without access to which competitors cannot provide services to their customers and that the dominant undertaking owns, constitutes abuse. Facilities are regarded as essential when they are not interchangeable and, by reason of their special characteristics, there are no viable alternatives available to potential competitors of the undertaking holding them, which are thereby excluded from the market. The concept of essential facilities can apply to intangible rights: the refusal by an undertaking which owns a copyright to give access to a product or service indispensable for carrying on a particular business is abusive, if it is preventing the emergence of a new product for which there is a potential consumer demand, it is unjustified and is such as to exclude any competition on a secondary market.
