The essential facility
doctrine (EFD) has traditionally been a topic of intense debate and marks the
most relevant transatlantic divergence in the enforcement of competition law.
As it constitutes a significant exception to the general rule that allows
businesses to freely decide whether to enter agreements regarding their
facilities, the discussion surrounding the EFD is about defining its limits.
Indeed, its rationale seeks to maintain a balance between fundamental rights
and competition, as well as between short-term and long-term competitive
benefits. To this end, EU courts have conditioned its application on
exceptional circumstances, with the indispensability of the infrastructure
serving as the pivotal criterion. This criterion acts as the threshold for
distinguishing between a facility that is essential for competition and one
that is merely convenient for competitors. However, over time, the case law has
progressively limited the instances in which the indispensability is required.
The recent decision of the Court of Justice in Android Auto has confirmed this
trend, stating that indispensability is not required when a platform has been
designed to be open to thirdparty undertakings. Given that Android Auto appears
to be the last dance of the EFD as originally conceived, this article
investigates whether the current application of the EFD in the EU still aligns
with its rationale.