The Research On Essential Facilities Doctrine

Essential Facilities Doctrine could be supported by economic theory,public policy and constitutional construction.Its economics foundation has experienced three stages,the support from neoclassic price theory,the denial from Chicago School and reaffirmation from Post-Chicago School.This Doctrine has three kinds of public policy functions.It benefits regulatory reform,resource distribution and the formation of integrated market.The constitutional constructions prove that this doctrine could strike a balance between restricting trade freedom and securing basic human rights and also promote the economic order.In Terminal R Ass'n,the U.S.Supreme Court set the applicable scenario for this doctrine.The distinction of coordinated conduct and single conduct in Associated Press,the regulatory factor in Otter Tail and MCI,and the specific intent factor in Aspen,have all laid the intellectual foundations for this doctrine.Orderliberalism and the internal integration pursuit of EU have formed a solid basis for the surge and prosperity of essential facilities doctrine.Except regulatory industries,whether refusal to supply downstream competitor with essential facilities constitutes abuse of dominant position,are determined by the existence of refusal,the dominant position of the firm in the upstream market,the essentiality of the product in downstream competition,whether the refusal to access will exclude downstream market's effective competition and any business justification.The infrastructure theory which divides application and infrastructure has been introduced to essential facilities doctrine,and added infrastructure test from the demand-side.The new essential facilities doctrine has showed two policy preferences,which are reducing the anti-monopoly obligation for refusal to access to wholly commercial infrastructure and increasing the anti-monopoly obligation for refusal to access to mixture infrastructure that has public interest.China's Anti-Monopoly Law aims to promote market economy efficiency,protect consumers' welfare and fair competition and establish an integrated,open,competitive and orderly market.However,from the perspective of application of new essential facilities doctrine,paying less attention to fair competition and more to consumer welfare,is consistent with the internal logic of this doctrine.Adopting the doctrine into the abuse of dominant market position needs some structural adjustment.The new framework will improve the proof standard by competition agency and anti-monopoly civil litigation plaintiff.Applying the doctrine relates to remedy or penalty.Under the anti-monopoly commitment system,the monopolist who was proved to commit the refusal,only has to satisfy a one-time access requirement and led the agency to conclude the case.Under the anti-monopoly penalty,requiring the monopolist to provide common "fair and non-discriminatory" access service will arise huge supervision cost,unless there is supervision from the regulatory body and arbitration court.The enthusiasm of EU Commission to apply the simplified essential facilities doctrine to regulatory industries is highly admired China is under the deeper economic reform,therefore authorizing the competition agency with power,to force the infrastructure holder to provide access,where no regulation law requires access obligation and where it was under regulation and now is not the market is not competitive enough,is pro-competitive.