“The Interest to Promote Competition Vs “The Interest to Promote Competition Vs. the Need Give Incentives to Innovate - An Undecided Clash of Titans From the EU Perspective” Session: Revisiting IPR and Competition Uroš Ćemalović, Faculty of Law, University „John Naisbitt“, Belgrade, Serbia

Plan of the presentation 1. The two Titans: interest to promote competition and regulatory incentives to innovate 2. Clash of Titans: the case of compulsory licensing 3. Key questions → discussion

The two Titans: interest to promote competition and regulatory incentives to innovate The overall objective of competition law – to ensure the economic efficiency by fighting the abuse of monopoly The value of free, undistorted competition – one of the cornerstones of not only economic Common/Internal/Interior Market), but also political integration; ideals of the ‘economic and social progress’ and ‘the constant improvement of the living and working conditions’ The EU’s Intellectual Property Law – late development (80s), progressive harmonisation of national legislations in the field of trademarks and designs, followed by the creation, in 1993, of a Community trademark; in the EU there is (still) no unitary patent protection The clearest possible juxtaposition of two equally important, but conflicting, values - - - the first recital of the Directive 2004/48/EC, that differentiates the need to eliminate ‘distortions of competition,’ on the one hand, ‘while creating an environment conducive to innovation and investment,’ on the other

Clash of Titans: the case of compulsory licensing The key issue and the potential playground for the clash of Titans – 1) whether and 2) under which circumstances certain actions of an IPR holder can be considered as the abuse of a monopolistic position in terms of EU antitrust legislation? what could be considered by illegal behavior (abuse) by one set of provisions (completion law) is, in the same time, perfectly legal and legitimate action (use of exclusionary right) in the context of another set of provisions R. Pardolesi: it is a ‘schizophrenic stance,’ where the rules are ‘giving with the right hand, while taking back with the left (which is) an inconsistency that cannot be solved using rhetorical arguments’.

Key questions → discussion 1) It is argued that the only universally applicable solution is to perform the balancing between the negative effects (for the entity which requested the license) of the refusal of the IPR holder to grant license, on the one side, and of the prejudice the IPR holder might encounter if compulsory licensing is imposed, on the other – HOW TO PERFORM THE BALANCING? 2) In its judgement in case Microsoft v Commission, the Court has provided some elements of a common European response regarding the balance between those two values, by obliging the IPR holder to ‘sufficiently establish’ that the disclosure of the interoperability information would have ‘a significant negative impact on its incentives to innovate’. When it shall be considered that the alleged negative impact is established by an IPR holder to the degree that could be considered as ‘sufficient’? Which degree of this impact should be considered as ‘significant’? THANK YOU!