The Essential Facilities Doctrine: The Lost Message of Terminal Railroad

Maurer, Stephen M. and Scotchmer, Suzanne (2014) The Essential Facilities Doctrine: The Lost Message of Terminal Railroad. TSE Working Paper, n. 14-476, Toulouse

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Official URL: http://tse-fr.eu/pub/27978

Abstract

The growing importance of shared networks, shared platforms and shared standards leads to a renewed discussion of the essential facilities doctrine of antitrust. This is an area where European law and American law have diverged. In Trinko (2007), the U.S. Supreme Court came close to abolishing it. At the same time, it was reinvigorated by the European Commission, which asserted it successfully in E.C. v. Microsoft, and then, facing criticism, clarified the doctrine in a Guidance document. We harmonize the main cases around the doctrine’s original but often forgotten purpose namely, harvesting economic synergies through sharing. We argue that, absent such a doctrine, these synergies could be lost as firms either avoid sharing to avoid antitrust liability, or create sharing arrangements that undermine competition. We show how and why the original purpose of the doctrine has become entangled with other antitrust issues, in particular, leveraging. We systematize the sharing rules that have been imposed or allowed, with an emphasis on how to harvest synergies while mitigating any harm to competition.

Item Type: Monograph (Working Paper)
Language: English
Date: 10 March 2014
Place of Publication: Toulouse
Uncontrolled Keywords: Competitions policy, antitrust, Sherman Act, essential facility
JEL codes: K21 - Antitrust Law
L40 - General
L41 - Monopolization; Horizontal Anticompetitive Practices
Subjects: B- ECONOMIE ET FINANCE
Divisions: TSE-R (Toulouse)
Institution: Université Toulouse 1 Capitole
Site: UT1
Date Deposited: 09 Jul 2014 17:42
Last Modified: 20 Mar 2018 15:22
OAI ID: oai:tse-fr.eu:27978
URI: http://publications.ut-capitole.fr/id/eprint/15858

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