A Critical View on the Influence of Competition Analysis Paradigms on the Essential Facilities Doctrine

The essential facilities doctrine is a competition law tool that allows an eco- nomic entity to demand access to a facility controlled by another economic entity (with a dominant position in the market for that facility) if access to the facility is necessary to access the downstream market. The author attempts to answer the research question: How do selected competition policy paradigms influence the understanding of the doctrine’s content and its execution? The author presents the impact of selected competition policy paradigms on the understanding and application of the doctrine in the United States of America and the European Union, focusing on the Harvard School, the Chicago School, and Ordoliberalism. He points out that the doctrine was developed and peaked in the United States of America at the time of the dominance of the Harvard School. The doctrine’s influence began to wane with the rise of the Chicago School, which ultimately eclipsed it within the legal framework. Before the transition to the "more economic approach”, European competition law was deeply rooted in Ordoliberalism. This emphasises the imperative of interven- tion in the market, a principle that contributed to the success of this doctrine in the European Union. As the ordoliberal influence on European competition law began to wane, so too did the significance of the doctrine.

Key words: Harvard School, Chicago School, Ordoliberalism, neo-Brandeis Movement, the Essential Facilities Doctrine, competition law.