NICOLAS PETIT, UNIVERSITY OF LIEGE (ULG) & MIGUEL RATO, SHEARMAN & STERLING LLP 11TH CONFERENCE OF THE ASSOCIATION OF EUROPEAN COMPETITION LAW JUDGES (AECLJ) HELSINKI, 15 JUNE 2012 Abuse in Technology-Enabled Markets: Established Standards Reconsidered

2

Technology-Enabled Markets? A loose concept Key features Intense degree of innovation Rapid innovation cycles Network-effects First mover advantage Price and product differentiation Importance of standards Examples => ICT, semiconductors, e-commerce 3

Goals of the Presentation 1. Is a different approach to abuse of dominance required in technology-enabled markets? 2. Explore the various areas of the law on abuse of dominance in light of the specificities oftechnology-enabled markets 4

Outline 1. Are Technology-Enabled Markets Particularly Prone to Abusive Conduct? 2. Market Definition and Dominance in Technology- Enabled Markets 3. General Reflections on Legal Standards for Unlawful Abuse in Technology-Enabled Markets 4. Three Types of Abuse in Technology-Enabled Markets 1. Excessive pricing 2. Abusive Litigation 3. Predatory Pricing 5. Conclusion 5

1. Are Technology-Enabled Markets Particularly Prone to Abusive Conduct? Recent Article 102 investigations by the Commission Microsoft I, Microsoft II, Intel, Rambus, IPCom, MathWorks, Samsung, Motorola, IBM, Thomson Reuters, Google, Qualcomm… The traits of a monopolist The appearance of abuse Potential for error even greater than in old economy cases Cost of error even more severe Technology-enabled market particularly prone to errors in applying Article 102 6

2.Market Definition and Dominance in Technology-Enabled Markets i. Inadequacy of static market share analysis ii. High profit margins are no proxy for SMP iii. Competitive constraints arising from technological complements iv. Technological convergence creates constraints across relevant markets v. Importance of potential competition vi. The road to dominance may matter vii. IP Rights do not necessarily confer SMP viii. Several misconceptions about standards 7

3.General Reflections on Legal Standards for Abuse in Technology-Enabled Markets Focus on exclusionary conduct as a matter of priority Effects-based standards should prevail over forms- based standards Likely effects analysis is forms-based approach in disguise Not all foreclosure is anticompetitive foreclosure Liability based on actual effects is preferable to liability based on likely effects Difficulty of counterfactual analysis is not a reason to avoid it 8

4.Three Types of Abuse in Technology- Enabled Markets 1. Excessive pricing 2. Abusive litigation 3. Predatory pricing 9

4.1.Excessive Pricing Notoriously difficult to determine when a price is excessive Risk of chilling competition and investment Commission has shown remarkable self-restraint IP laws already provide adequate incentives to innovate Enforcers should thus be wary of applying competition law to exercise of IP Surprising that most recent excessive pricing cases concern patents, in particular standard-essential patents (SEPs) 10

4.1.Excessive Pricing Two types of cases De facto standards Formal standards adopted by SSOs Different types of proceedings National litigation (patent infringement) Commission investigation Different types of allegations Violation of a FRAND commitment (patent hold-up) Competition law defense 11

4.1.Excessive Pricing Absence of a thorough legal analysis of the duties imposed on owners of SEPs by Article 102 Straightforward application of the United Brands test in our view incorrect Appropriate test is Magill/IMS Health (exceptional circumstances that prevent the development of the secondary market) If a dominant firm can refuse to license its patents at any price, then it can also legitimately license them at any price it sees fit Article 102 will only limit IPR prices where there is an antitrust duty to license Rambus: Using Article 102 to sanction conduct by non dominant firms? 12

4.2.Abusive Litigation Theory of harm that has not featured prominently in any case over the last decades Sudden interest: investigations into Samsung and Motorola Allegation that mere act of seeking injunctions against unlicensed implementers of SEPs is abusive One precedent in ITT/Promedia (1998) Key principles: (i) only abusive in wholly exceptional circumstances because access to the courts is a fundamental right; and (ii) exception must be construed narrowly Legal standard: (i) action cannot be reasonably considered an attempt to establish the rights of the undertaking concerned; and (ii) conceived in the framework of a plan whose goal is to eliminate competition 13

4.2.Abusive Litigation Applying ITT/Promedia to Samsung and Motorola Can a request for injunctive relief reasonably be considered an attempt to establish patent owners rights? Yes, unless: Patent owner was under an antitrust duty to license; Patent owner knowingly breached that duty The bottom-line => need to apply again the Magill/IMS Health test + need to prove that patent owner request for injunction is part of a plan to eliminate competition Theses are high hurdles to overcome, for good reason 14

4.3.Predatory Pricing Free products are pervasive on technology-enabled markets (e.g., accounts, social networks, search engines, news, etc.) Zero pricing looks suspicious under Article 102, yet should not Explained by two-sided markets and product versioning The fact that no price is charged on a category of users does not mean that no price is charged at all (two sided markets) The fact that no price is charged for a particular service does not mean that no price is charged for other services (versioning) 15

4.3.Predatory Pricing Bottin Cartographes v Google France, Tribunal de commerce de Paris, 31 January 2012 Case about Google Maps API (Geocoding web services, itineraries, etc.) 16

17

4.3.Predatory Pricing Complaint from rival supplier of online maps Tribunal de commerce: Price is equal to 0 Google thus cannot recoup any of the production costs Elimination of all competitors on the market and evidently part of a wider exclusionary strategy But: Classic example of two-sided market => advertisers who seek placement on maps pay for users Product versioning => website owners can purchase premium version (Google Maps API for business) which is licensed under specific financial conditions 18

5.3.Predatory Pricing 19

5.Conclusion A substantive remark Technology-enabled markets are a magnifying glass for the flaws of current legal standards in Article 102 case-law In modern EU competition law, several legal standards compete for the assessment of abuse A clear choice in favour of the effects-based approach would promote legal certainty and administrative efficiency A procedural remark Technology-enabled market often view as candidate for rapid intervention (Almunias recent speech at St Gallen) This should be avoided, given risks and cost of type I errors are significantly greater on such markets Difficult to predict demand conditions, or market entry and supply conditions on newly emerging markets (recognised in SSR) Prudence, as opposed to precaution, should prevail 20

21 Thank you!