Revitalisation of the Essential Facilities Doctrine in EU competition law. The complementarity with the new Digital Markets Act

Abstract

In recent years, platform economy has been raising competition concerns around the globe. In the European Union, the European Commission and the National Competition Authorities actively enforced Article 102 TFEU, sanctioning companies for abuse of a dominant position. Within the various theories of harm presented and mostly upheld by the Court of Justice, a common point is the ability of dominant undertakings to leverage, due to owning a platform, their market power in adjacent markets. This article therefore explores whether the Essential Facilities Doctrine should be revitalised to preserve a competitive structure and avoid exploitation of users. Moreover, the entry into force of the Digital Markets Act led researchers to analyse similarities with the doctrine and their possible complementarity once the Regulation will start applying in 2023. With a view to this possibility, concerns as to respect of the fundamental principle of ne bis in idem have been underlined, trying to clarify the future Competition Law landscape.