Evaluating The Refusal To Supply/ Essential Facility Law In India Vis-A-Vis The Eu Position From The Oscar Bronner And Shamsher Kataria Cases
Shiwangi Kumar, BA LLB, O.P Jindal Global University
Introduction
The Essential Facilities doctrine is used to address the anticompetitive behaviour of a dominant undertaking that owns or controls such a facility (an essential facility) and refuses, without an objective justification, to make it available to competitors or new entrants. And even if they makes it available, it is on discriminatory terms by abusing its position of dominance. A significant EU case concerning ‘essential facilities’ is the Oscar Bronner case1. In this case, the respondent Mediaprint published two newspapers which made up almost 50% of the newspaper market share in Austria and also had a well-established system for nationwide newspaper distribution service. Mediaprint via this unique system delivered its own newspapers as well as newspapers by a third party publisher to subscribers’ homes early in the morning. Oscar Bronner, the petitioner, also a publisher of a newspaper made up only 4% of the newspaper market share in Austria. Oscar Bronner argued that Mediaprint’s refusal to distribute its newspapers was an abuse of dominance as Oscar Bronner was incapable of establishing a similar competing distribution system and that the distribution system should be regarded as an essential facility.
