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

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

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

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

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

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

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

PSI and Competition The General Framework Thank you! 8