Antitrust Law "essential Facilities" Finds

Thinking of the Essential Facility, originating from the "U. S. V. Terminal Railroad Association of S.t Louis", has been nearly 100 years old. Although the Essential Facility Doctrine (referred to as the EFD) has an uninterrupted adopting, improving and perfecting, the criticism of scholars and judiciary has been persistent. In the writer's perspective, the controversy bases on that the scholars and judiciary have no consistent viewpoint on the basic questions, such as how to define "Essential Facility", how to certify the Essential Facility, and they are the key to the application of the EFD.In Art.8.2 of "The relevant provisions about the abuse of market domination (a draft for discussing)", the EFD has been bringing into Chinese Antimonopoly Law. After analyzing, the writer points out that although the EFD is attached to Refusal to Deal, it is necessary to discuss the EFD independently. Numerous criticism results in certifying unstrictly, and it infringes upon market economy.Under the classic documentations which are from the U.S. and EU, after analyzing the difference among the truth of the cases and the judgments, the whole analyzing process is:The first step is to certify the Essential Facility when the application of the EFD, and divide Related Market relating to each case firstly, then analyze essential of the Essential Facility, lastly decide whether it belongs to the Essential Facility. However there are other factors should be considered for the application of the EFD.Due to our country's aggregate demand of developing market economy, especially current demand of Intellectual Property and Public Service, definition of the Essential Facility and application of the EFD are necessary. We should pay more attention to how to make the application concrete, after "Essential Facility" has been raised in related legal documents.