Sustainability Objectives in Competition and Intellectual Property Law

Front matter

LIDC Contributions on Antitrust Law Intellectual Property an M inir ir Competition

Pranvera Këllezi Pierre Kobel Bruce Kilpatrick Editors y

Sustainability Objectives in Competition and Intellectual Property Law

Preface

Businesses are increasingly embracing sustainability objectives, driven by the international community. This volume of LIDC contributions focuses on the question of whether and to what extent competition and intellectual property laws incorporate sustainability objectives. Competition and intellectual property law are certainly not the only tools for addressing sustainability issues, but they can play a role in moving towards a more sustainable society.

Sustainability has gained prominence in competition law in all jurisdictions covered in this volume. The reports focus on classic questions such as whether sustainability agreements restrict competition and, if so, to what extent they can be exempted on efficiency grounds. The contributions raise many questions, in particular the treatment of non-market efficiencies. The soft law and case law produced by competition authorities are examined, while presenting the leadership role of some competition authorities in the field, from advocacy to policy papers and sustainability guidelines. The authors call for more individual guidance to provide more transparency and clarity to industry, advisors and society at large on sustainability issues, with guidelines or even block exemptions dealing with sustainability providing even greater legal certainty. The International Report on Sustainability and Competition Law, prepared by Julian Nowag, associate professor at Lund University and associate at the Oxford Centre for Competition Law and Policy, summarises the findings on the core provisions of competition law, the prohibition of coordinated practices, the abuse of a dominant position and merger regulation.

On intellectual property, the contributions examine various important issues around sustainability, such as the need for intellectual property rights to remain technology-neutral, ways to promote the use of sustainable technologies and incentives for licensing, ways to promote the dissemination of sustainable technologies, including compulsory licensing, cross-licensing, open source or FRAND licensing, or replacing the destruction of counterfeit goods by recycling. The reports also discuss greenwashing and how it can be addressed through revisions to trademarks and related rights. An International Report on Sustainability and Intellectual Property, prepared by Chris de Mauny, Partner, Bird & Bird LLP, London, examines trends and draws conclusions based on contributions from eight vi Preface

European countries and Brazil. The report could not be included in this volume, but is available for free download from lidc.org or by contacting the author.

This volume provides a well of information as to new trends, new legislation, regulations, decisions, and enforcement policies regarding these fascinating questions. It takes a huge amount of work and commitment from the national reporters, and particularly the international reporters, to produce their studies and we would like to thank them for their enormous contribution, which is greatly appreciated. The purpose of this book is to share their learnings with a wider audience across the members of the LIDC and its constituent national organisations and with academics, practitioners, and students across the world. We hope you enjoy reading it as much as we enjoyed listening to the debate and discussions which took place in Milan.

The editors would like to thank all the authors for their contributions and their patient collaboration during the editing of this book. They would like to express their sincere gratitude to the Members of the Bureau, of the Council and of the Scientific Committee for their kind support and encouragement during the preparation of this book.

Geneva, Switzerland Pranvera Kéllezi Geneva, Switzerland Pierre Kobel London, UK Bruce Kilpatrick

Part I Sustainability Objectives in Competition Law

1 Sustainability and Competition Law: An International Report... . Julian Nowag

Adrian Kubat and Adnan Tokié

Jan Blockx

José Mauro Decoussau Machado

Radka MacGregor Pelikánová

Michaél Cousin, Alexandre Marescaux, Lauren Mechri, and Guillaume Melot

Eckart Bueren and Jennifer Crowder

Andras M. Horvath

Elisa Teti

Clement Mifsud-Bonnici

Johana Cau and Alexandra Telychko

Simon Holmes, Nicole Kar, and Lucinda Cunningham vii viii Contents