Circumscribing the Scope of EC Competition Law in Network Industries? A Comparative Approach to the US Supreme Court Ruling in the Trinko Case

Abstract

A year ago, the US Supreme Court adopted its famous judgment in the Trinko case. This ruling has significantly narrowed the scope of applicability of US antitrust law provisions in network industries. On the substantive ground, the Supreme Court dismissed the existence of the essential facility doctrine in US antitrust law. On the jurisdictional ground, the Supreme Court considered that antitrust law should not be applied where sector specific remedies existed and could be enforced. These two findings contrast with the current state of EC law. As far as the substantive issues are concerned, recent cases show that the European Commission heavily relies on antitrust law's essential facilities arguments in network industries. As far as the jurisdictional issue is concerned, the decision making practice of the Commission reveals that it is ready to enforce competition rules in sectors where specific remedies can be enforced or have already been enforced (e.g. in the Deutsche Telekom case). The present article intends to cast light on the divergences between the US and the EC approaches. It suggests that while on the substantive ground the Supreme Court's findings could fruitfully inspire EC authorities, the jurisdictional principles set out in Trinko should not necessarily be transposed as such in the EC.