which are broadly equivalent to indents a), b), d) and e) of article 101(1) TFEU above transcribed – but goes further and also includes indent e), which reads as follows: “Refusing access for another undertaking to a network or other essential facilities that it controls, when appropriate payment for such is available, in a situation where the other undertaking cannot therefore, in fact or in law, act as a competitor of the undertaking in a dominant position in the market, upstream or downstream, unless the dominant undertaking can demonstrate that, for operational or other reasons, such access cannot reasonably be provided.” The essential facilities doctrine reflected in the CJEU’s Bronner case36 is considered again to be an acute topic, given the growing importance of the digital economy and the importance of “non-physical” assets such as data and/ or rankings for undertakings to compete. In this context it is particularly relevant notably for the tourism sector the set of rules comprising the Digital Markets Act (“DMA”)37 and the Digital Services Act (“DSA”)38. While the former “aims at preventing gatekeepers from imposing unfair conditions on businesses and end users and at ensuring the openness of important digital services”, the latter aims at addressing the negative consequences arising from certain behaviours by online platforms acting as digital gatekeepers to the EU single market39. Even though it is not the object of the present contribution, reference should be made to the fact that both legal frameworks have been highly debated and contested by many and raise interesting questions notably on the interplay between the Commission and national competition authorities. The DMA defines a series of specific obligations that gatekeepers will need to respect, including prohibiting them from engaging in certain behaviours in a list of do’s and don’ts. In parallel, the DMA also empowers the Commission 36 Judgment of 26 November 1998 in Oscar Bronner, case C-7/97. In its judgment of 12 January 2023, the CJEU in Lietuvos geležinkeliai AB (Lithuanian Railways) v. Commission, case C-42/21 P, seems to maintain the acuteness of the three criteria set forth in the previous case for the purposes of considering the conditions for finding that the refusal by the dominant company to grant access to a service constitutes an abuse under Article 102 TFEU. 37 Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), published in the OJ L 265, 12.10.2022, p. 1–66. 38 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), published in the OJ L 277, 27.10.2022, p. 1–102. 39 See the Commission’s DMA webpage at https://digital-markets-act.ec.europa.eu/index_en. 136 MARGARIDA ROSADO DA FONSECA
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