During CADE’s 80th trial session, Commissioner Cristiane analyzed an issue that is highly relevant to antitrust, the matter of essential facilities, presenting the historical context of the concept and how it emerged from the analysis of infrastructure sectors. These sectors, in which duplicating a certain structure would be economically inefficient (e.g. railroads), there would be an incentive, by its holder, to raise the costs of rivals by either charging excessive prices of use or impeding access altogether. In these cases, lack of access would make it impossible to carry out certain economic activity. The Commissioner presented a subtle, albeit important distinction between essentiality and essential facility, emphasizing that although an “input” or “good” may be important to an activity, it is not necessarily essential to its operation, impeding it if absent; even if it leads to a decrease in revenue. That is, the distinction would center on the degree of “fundamentalness”, “indispensability” and, ultimately, “necessity/need” of access to the input to carry out certain economic activity; the absence of which would make this impossible.
2016/03/04
