Domenico Durante, Giovanni G. Moglia, Antonio Nicita

La nozione di "Essential Facility" tra regolamentazione e antitrust. La costruzione di un test

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The recent liberalisation wave, which has characterised European and Italian public utility sectors, has extensively recurred to the "essential facility" (EF) concept in order to open former legal monopolies to competition, with rapid and remarkable improvements in market efficiency. However, this process has also introduced further ambiguity in the application of the so-called "essential facility doctrine" (EFD) within the antitrust doctrine, where the enforcement of the EFD cannot bypass the boundaries traced by the antitrust legislation on the abuse of a dominant position. In this paper we suggest a unified framework for a definition of an "essential facility" which might be workable both for antitrust and liberalisation purposes. We propose a preliminary test in order to define an "essential facility" and to distinguish between the standard refusal to deal and the application of the "essential facility doctrine".

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