'Essential facilities' designation for platforms needs criteria to be set, Vestager says

Dominant digital platforms would need to meet strict — and still undefined — criteria to be classified as “essential facilities,” EU antitrust chief Margrethe Vestager has said.

The growing clout of platforms such as Facebook and Amazon has led to a debate about whether they should receive the “essential facilities” designation, which applies to critical infrastructure such as railways and power grids, and brings targeted rules to guard against the abuse of a dominant position.

“As regards competition-law enforcement, there can be no general approach of applying the so-called essential-facility doctrine to dominant digital platforms,” Vestager wrote today in response to a question from EU lawmakers.

Regulators thinking of adopting sector-specific rules “would need to identify the relevant criteria and thresholds, which would trigger the application of specific regulatory obligations.”

The European Commission's digital and competition departments are currently working on a legislative proposal that could see the likes of Amazon and Google face targeted regulation designed to address their apparent “gatekeeper” role in the digital economy.

Vestager was replying to a question from European Parliament lawmakers Carmen Avram, Andreas Schwab, and Stéphanie Yon-Courtin. She reiterated the comments made recently to the French Senate by the EU’s top competition official, Olivier Guersent, which were cited by the lawmakers in their question.

“Mentioning, notably, the regulatory framework applicable to the railway sector, Director General Guersent indicated that a debate should take place about whether similar regulatory obligations should be enacted vis-à-vis digital platforms,” Vestager wrote.

“It is in that context that the legislator would need to identify the relevant criteria and thresholds, which would trigger the application of specific regulatory obligations.”

The commission intends to have a proposal for “ex ante” regulation of dominant platforms drafted by the end of this year, MLex understands, but the Covid-19 crisis could cause delays. The law, if formally proposed, would give the regulator power to require or prohibit certain behavior without having to first prove a competition infringement.

The commission will ask for initial feedback on the idea of targeted regulation for dominant platforms as part of its broader public consultation on the planned Digital Services Act, it is understood.