The Development Of The Essential Facilities Doctrine In The EU And Its Application In China

An issue that has been the subject of enormous attention in recent years is the so called "Essential Facilities Doctrine" under Article 82. In situations when a facility is found to be "essential", it is seen as an abuse of the dominant firm not to give competitors access to the facility at non-discriminatory terms. The effect of applying the Essential Facilities Doctrine is that the competition authorities can require a particular pro-competitive behavior of a dominant firm. However application of the Essential Facilities Doctrine is considered particularly delicate, as too wide an application of the concept would jeopardize a firm' s incentive to invest. The Bronner case, fortunately, provided a more restricted new set of criteria which severely limited the applicability of the concept. The most controversial aspect of the essential facilities issue is its application to Intellectual Property rights. It is established law that, in certain circumstances, compulsory licensing can be imposed to combat monopoly situations. Case law continues to define exactly when such a remedy can be used. The question of how to fashion a remedy that properly balances these competing interests in those cases where denial of access constitutes a violation of competition law continues to be debated widely.China is on the phase to perfect its Market Oriented Economy System. The Government develops policies that favor the de-monopolization and liberalization of the sectors regarded as natural monopolies. Moreover, with the entry of China into the WTO, more and more foreign corporations come to China and maintain a monopoly in some fields, which makes Chinese enterprises depressed. The Essential Facilities Doctrine, however, may be used by the Chinese companies to enter into the market at impartial terms.This article, focusing on the above purpose, tries to provide some suggestions on how to make use of the Essential Facilities Doctrine, on the base of analyzing the Essential Facilities Doctrine deeply. This article, in Chapter I, examines the ECJ' s decision in Bronner, explains the criteria developed by the Court for applying the essential, facilities doctrine by comparing this case with the earlier cases. Then, it will analyze the case law involving Intellectual Property rights to see under what circumstances the compulsory licenses would be granted in Chapterâ…¡. On the basis of Chapterâ… andâ…¡, several key issues will be discussed upon circumstances under which the-Essential Facilities Doctrine would be applicable, mainly on the market definition, the interpretation of essential facility, the objective justification and the access terms, in Chapterâ…¢. Finally, in Chapterâ…£, this article brings forward the advice to the Competitive Legislation and Judicature based on the analysis of the application of the Essential Facilities Doctrine in China.