Volume 48 (2011) / Issue 5
Kim Talus, 'Just what is the scope of the essential facilities doctrine in the energy sector?: Third party access-friendly interpretation in the EU v. contractual freedom in the US' (2011) 48 Common Market Law Review, Issue 5, pp. 1571–1597
The application of EU competition law in the energy sector has intensified over the last few years. Article 102 TFEU and the essential facilities doctrine has been employed to change the way in which the European natural gas markets operate. Using a merits based approach to the essential facilities doctrine and transportation capacity contracts, the Commission is attempting to create a market structure capable of supporting competition. While the effect of this body of administrative cases is increasing opportunities for competition and as such can be seen as positive, the measures forced on the back of the essential facilities doctrine raise serious questions on its applicability and scope of actions it allows.
A comparison to the case law in the United States shows a stark difference in the approach on the other side of the Atlantic. The Courts in the United States have been less willing to substitute the market-based mechanism with their own views about the most efficient market structure.
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