Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Sections 14 and 15 of the Act define special exclusive rights and essential facilities respectively:
- special or exclusive rights are rights the State or local Government grant to an undertaking that enable it to have a competitive advantage over other undertakings in a product market or to be the only undertaking in the market (Section 14);
- an undertaking controls essential facilities if it ow …

Undertakings having exclusive rights or controlling essential facilities

Section 13 of the Act defines an undertaking in a dominant position as one which accounts for at least 40% of the turnover in a particular product market or whose position enables it to operate in a market independently of competitors, suppliers and buyers to an appreciable extent. Undertakings that had special or exclusive rights or that controlled essential facilities were also considered as coming within the provisions of the Act (Section 13(2)). The amendments to the Act in 2013 removed undertakings with special or exclusive rights from the scope of the presumption.

The mere fact of an undertaking enjoying a dominant position on the market is not in itself prohibited under Estonian competition law, but abusing such a position is unlawful. Section 16 of the Act sets out a non-exhaustive list (similar to that in Article 102 TFEU) of practices considered as constituting abuse.

The prohibition

Sections 14 and 15 of the Act define special exclusive rights and essential facilities respectively:

- special or exclusive rights are rights the State or local Government grant to an undertaking that enable it to have a competitive advantage over other undertakings in a product market or to be the only undertaking in the market (Section 14);

- an undertaking controls essential facilities if it owns, possesses or operates a network, infrastructure or any other essential facility which other persons cannot duplicate or which are economically inexpedient to duplicate but without access to which or the existence of which it is impossible to operate in the product market (Section 15).

Before 2013, Section 17 of the Act placed restrictions on the activities of undertakings with special or exclusive rights. For instance, the State agency or local government granting special or exclusive rights to an undertaking could determine the prices to be charged or impose other conditions or obligations on the undertaking to ensure that the buyers of the goods of such undertaking or sellers of goods to such undertaking were not placed in a substantially worse situation than they would be if competitors were present in the corresponding area of activity. Section 17 has been repealed, taking effect as of 15 July 2013.

Pursuant to Section 18, an undertaking with special or exclusive rights or in control of an essential facility must permit other undertakings to have access to the network, infrastructure or other essential facility under reasonable and non-discriminatory conditions. Under Section 181, both types of undertakings must keep separate accounts of revenue and expenditure related to each product or service on the basis of consistently applied and objectively justified accounting principles. According to those rules, the accounting of revenue and expenditure must allow the assessment of whether the ratio between the price of a product or service of the undertaking and the value of the product or service is reasonable.

An undertaking may however refuse to grant other undertakings access to the network, infrastructure or other essential facility if the refusal is based on objective reasons, including:

- the safety and security of the equipment connected with the network, infrastructure or other essential facility or the efficiency and security of the operation of these;

- the maintenance of the integrity or the inter-operability of the network, infrastructure or other essential facility;

- the non-conformity with established standards or rules of the equipment to be connected to the network, infrastructure or other essential facility;

- the lack of technical and financial capability of the undertaking applying for access;

- the absence of permit of the undertaking applying for access;

- the necessity to ensure data protection.

Global Competition Law

208. Undertakings having exclusive rights or controlling essential facilities

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Les notions juridiques connexes

208. Undertakings having exclusive rights or controlling essential facilities

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise