PSI and Competition The General Framework

Präsentation zum Thema: "PSI and Competition The General Framework"—  Präsentation transkript:

1 PSI and Competition The General Framework
Max Planck Institute for Intellectual Property and Competition Law PSI and Competition The General Framework Josef Drexl

2 PSI and Competition The General Framework
Point of Departure Common Goals of PSI Law and Competition Law  Development of functioning and efficient markets  Dissemination of knowledge, which leads to new products (cf. law on transfer of technology) PSI Law and Competition Law Differ  PSI law only applies to “public sector bodies” Competition law applies to all “undertakings”  PSI law stipulates a general duty to deal Competition law with specific requirements for a duty to deal

3 PSI and Competition The General Framework
“public sector body” v “undertaking” Is there an overlap of ISP law and competition law? Undertaking: Economic activity relating to the supply of goods or services (Höfner) (1) How does the “public task” approach influence the assessment of “undertaking? (2) Does the duty to grant re-use make the public sector body an undertaking? 3

4 PSI and Competition The General Framework
Constellations for Assessment Unilateral Conduct  Exclusion of competitors  Exploitation of customers Restrictive Agreements  Principles on Licensing Arrangements 4

5 PSI and Competition The General Framework
Abuse of Market Dominance and Vertical Integration Constellation: (1) Upstream: PSB as the only source of supply (2) Downstream: PSB is a competitor Example: ECJ: “Magill” Theory of Harm: Exclusion of competition in downstream market (less diversity, less innovation) Remedies: (1) Duty to deal (Article 4(1) PSI Dir.) (2) Price control (margin squeeze, “as efficient competitor test”) (Article 6 PSI Dir.) 5

6 PSI and Competition The General Framework
Abuse of Market Dominance: No Vertical Integration Constellation 1: PSB as the only source of supply Threat: Excessive prices Benchmark: Competitive price Constellation 2: PSB competes in “upstream” market for supply of information Threat: Predatory pricing Benchmark: “average variable cost” Question: Amending Art. 6? In which direction? 6

7 PSI and Competition The General Framework
Licensing Agreements General Approach: Article 8(1) PSI Directive Technology Transfer Law as a Benchmark Non-Discrimination: Article 10 PSI Directive - Need for market dominance - but: Relevance of State aid law Non-exclusivity: Article 11 PSI Directive - Pro-competitive effect of exclusivity - Article 106 TFEU? 7

8 PSI and Competition The General Framework
Thank you! 8