COMPETITION • FRENCH LAW • ABUSE OF DOMINANT POSITION

The denial by an undertaking in a dominant position of access to an essential facility provided that the latter is of an indispensable nature creates a risk of eliminating competition where a causal link is established between the dominant position and the abuses. The French authorities apply the concept of essential facility not only to actual physical facilities (heliports, ports, networks etc.), but also to intangible assets that cannot be reproduced by reasonable means, and which therefore constitute “essential resources”. The right of access to an essential facility is, however, dependent on the impossibility of finding an alternative solution or of reproducing it under reasonable economic conditions, so as not to compromise the incentive to innovate, and to ultimately promote a situation of competition. Such is the case of the record created by the incumbent gas operator in the context of its former monopoly, which is not replicable by its competitors under reasonable conditions of cost and time.