Sustainability Objectives in Competition and Intellectual Property Law (LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition)

✍ Scribed by Pranvera Këllezi (editor), Pierre Kobel (editor), Bruce Kilpatrick (editor)

• Publisher: Springer
• Year: 2024
• Tongue: English
• Leaves: 425
• Category: Library

✦ Synopsis

This open access volume of LIDC contributions focuses on how competition and intellectual property laws incorporate sustainability objectives. Businesses are increasingly embracing sustainability objectives, driven by the international community. Although competition and intellectual property law are certainly not the only tools for addressing sustainability issues, they can play a role in moving toward a more sustainable society.
Sustainability has gained prominence in competition law in all jurisdictions covered in this volume. The contributions focus on classic questions such as whether sustainability agreements restrict competition and, if so, to what extent businesses can be exempted on efficiency grounds. The papers also raise a number of questions, in particular concerning the treatment of non-market efficiencies. The soft law and case law produced by competition authorities are examined, and the leadership role of some competition authorities in the field – from advocacy to policy papers and sustainability guidelines – is highlighted. The authors call for more individual guidance to provide enhanced transparency and clarity to industry, advisors and society at large on sustainability issues, with guidelines or sustainability-related block exemptions providing even greater legal certainty.
With regard to intellectual property, the contributions examine various important issues, such as the need for intellectual property rights to remain technology-neutral, ways to promote the use of sustainable technologies and incentives for licensing, and ways to promote the dissemination of sustainable technologies, including compulsory licensing, cross-licensing, open source or FRAND licensing, and replacing the destruction of counterfeit goods with recycling. The papers also discuss greenwashing and how it can be addressed through revisions to trademarks and related rights.

✦ Table of Contents

Preface
Contents
Editors and Contributors
List of Abbreviations
Part I: Sustainability Objectives in Competition Law
1: Sustainability and Competition Law: An International Report
1.1 Introduction
1.2 General Framework
1.3 Specific Interaction and Cases
1.4 Shield
1.5 Sword
1.6 Greenwashing
1.7 Agency and Legislative Activities in the Areas of Competition and Sustainability
1.8 Other Competition-Law-Related Subjects and Competition
1.9 Conclusion
2: Sustainability and Competition Law in Austria
2.1 Introduction
2.2 Sustainability and Antitrust Law
2.3 Exemption Under Section 2 Para. 1 Cartel Act (Article 101 Para. 3 TFEU)
2.4 Efficiencies
2.5 Fair Share for Consumers
2.6 Indispensability of the Restrictions
2.7 No Elimination of Competition
2.8 Evaluation of the Amended Austrian Cartel Act
2.9 Environmental Advertising and Unfair Competition Law
2.10 Applicability of the UWG to Environmental Advertising
2.11 Prohibition of Misleading Statements (Section 2 UWG)
2.12 Product-Related Advertising
2.13 Advertising with Environmental Certificates
2.14 Corporate-Related Advertising
2.15 Advertising with Self-Evident Facts
2.16 Conclusion
3: Sustainability and Competition Law in Belgium
3.1 Introduction
3.2 Legal Framework
3.3 Enforcement Record
3.4 Advocacy and Prioritization
3.5 Conclusion
4: Sustainability and Competition Law in Brazil
4.1 General Framework
4.1.1 Definition of Sustainability
4.1.2 The Role of Sustainability in Competition Law
4.1.3 Specific Laws and Rules That Address the Intersection Between Sustainability and Competition Law
4.2 Specific Interaction and Cases
4.2.1 Brazilian Cases Where Sustainability Played a Role in the Enforcement of Competition Law
4.2.2 Brazilian Cases of Illegal Anticompetitive Conduct or Green Washing Conduct in the Context of Sustainability Initiatives
4.2.2.1 Brazilian Cases of Genuine Sustainability Initiatives Served as a Springboard for Other Anticompetitive Behavior
4.3 Agencies and Legislature
4.3.1 The Role of Agencies
4.3.2 The Role of Legislature and Specific Committees
5: Sustainability and Competition Law in Czech Republic
5.1 Introduction
5.2 Policy and Law Setting: The Potential Impact of Sustainability on the Protection of Competition
5.3 Case Law on the Protection of Competition and the (Lack) of Sustainability Impact
5.4 Agencies and Legislature for Sustainability
5.5 Conclusion
6: Sustainability and Competition Law: A French Perspective
6.1 Sustainability in the French Competition Law Framework
6.1.1 A Concept Akin to Environmental Protection
6.1.2 Sustainability in French Competition Law
6.1.3 The Future of Sustainability in French Competition Law Enforcement
6.2 Sustainability in the French Competition Law Decisional Practice and Case Law
6.2.1 Sustainability as a Sword´´ 6.2.1.1 Sustainabilityas a Sword´´ in Antitrust
6.2.1.2 Sustainability as a Sword´´ in Merger Control 6.2.2 Sustainabilityas a Shield´´
6.2.3 Sustainability `as a Trap´´ 7: Sustainability and Competition Law in Germany 7.1 Introduction 7.2 General Framework 7.2.1 Definition of Sustainability 7.2.2 Role of Sustainability in Competition Law 7.2.2.1 General Framework: Constitutional Law, European Law, Climate Protection Act (KSG) 7.2.2.2 Cartel Prohibition 7.2.2.2.1 Section 1 GWB (Equivalent to Article 101 TFEU) 7.2.2.2.2 Section 2 GWB (Equivalent to Article 101 (3) TFEU) 7.2.2.3 Prohibition of Abuse of a Dominant Position (Section 19 GWB) 7.2.2.4 Merger Control 7.2.2.5 Reference Point: European Competition Law 7.2.3 Specific Legislative Provisions on or with Relevance to Sustainability and Competition Law 7.2.3.1 Exemptions in Force 7.2.3.2 Former Exemptions 7.3 Case Law 7.3.1 Sustainability as a Sword 7.3.1.1 DSD 7.3.1.2 DSD/Remondis 7.3.2 Sustainability as a Shield 7.3.2.1 Merger Control Cases 7.3.2.1.1 E.ON/Ruhrgas 7.3.2.1.2 Miba/Zollern 7.3.2.1.3 Beretta/Ammotec 7.3.2.2 Individual Guidance 7.3.3 Greenwashing Cartels: Sustainability Initiatives as a Cover for Illegal Conduct 7.3.3.1 GGA 7.3.3.2 Agrardialog Milch 7.4 Policy and Reform 7.4.1 General Guidance 7.4.2 Reform Proposals 7.4.2.1 Monopolies Commission 7.4.2.2 Legislative Activity 8: Sustainability and Competition Law in Hungary 8.1 Introduction 8.1.1 Definition of Sustainability 8.1.2 Sustainability in Competition Law Rules 8.1.3 Sustainability Rules Relevant from a Competition Law Perspective 8.2 Cartels and Sustainability 8.2.1 Use of Sustainability Ex Post (Exempted Agreements) 8.2.1.1 Legislative Framework 8.2.1.2 Sustainability Agreements in Hungarian Case Law 8.2.1.2.1 Portable Batteries Case 8.2.1.2.2 Lead-Acid Accumulators Case 8.2.1.2.3 Beer Case 8.2.1.2.4 Lubricants Case 8.2.1.2.5 Comments to the Case Law 8.2.2 Use of Sustainability Ex Ante (Preventive Integration) 8.3 Abuse of Dominance and Sustainability 8.3.1 Legislative Framework 8.3.2 Use of Sustainability as a Sword 8.3.2.1 Practice 8.3.3 Use of Sustainability as a Shield 8.3.3.1 Practice 8.3.3.1.1 Children´s Safety Service Case 8.3.3.1.2 Rail Freight Case 8.4 Mergers and Sustainability 8.4.1 Legislative Framework 8.4.1.1 Mergers with a Community Dimension 8.4.1.2 Mergers with No Community Dimension 8.4.2 Competition Analysis 8.4.2.1 Use of Sustainability as Sword 8.4.2.1.1 First Scenario: Effects on Sustainability Pointing in the Same Direction as Effects on Prices 8.4.2.1.2 Second Scenario: Effects on Sustainability Pointing in a Different Direction Than Effects on Prices 8.4.2.2 Use of Sustainability as a Shield 8.5 Greenwashing 8.5.1 Soft Legal Framework: Strict Approach 8.5.2 Case Law: Less Focus on Enforcement 8.5.3 Expectations for the Near Future Connected to Greenwashing 8.6 Private Enforcement and Sustainability 8.6.1 Public and Private Enforcement of Competition Law 8.6.2 Sustainability, Competition Law and Private Enforcement: Setting the Framework for Interpretation in Hungary 8.6.2.1 Underlying Principles Serving as Potential Cornerstones of Interpretation 8.6.2.2 The Prohibition of Agreements Restricting Competition and the Prohibition of the Abuse of Dominance as the Basis for C... 8.6.2.2.1 The Prohibition of Agreements Restricting Competition 8.6.2.2.2 The Prohibition of Abuse of Dominance 8.6.3 The Material Criteria for Awarding Damages on the Basis of Competition Law Violations in Hungary 8.6.3.1 Infringement of Competition Law 8.6.3.2 Damages Suffered 8.6.3.3 Causal Link 8.6.4 Procedural Considerations of Damages Actions 8.6.4.1 Follow-on and Stand-Alone Damage Claims 8.6.4.2 Action in the Public Interest 8.6.4.3 Collective Redress (Class Action) 8.7 Agency Perspective 8.7.1 Activity in the Area 8.7.1.1 Enforcement 8.7.1.2 Non-enforcement 8.7.2 State of Affairs and Related Considerations 9: Sustainability and Competition Law in Italy 9.1 Introduction 9.1.1 The Concept of Sustainability and Ecological Transition 9.1.2 The Role of Sustainability in Competition Law 9.1.3 The Role of the IAA in the Ecological Transition 9.1.4 The Intersection Between Sustainability and Competition Law 9.2 Sustainability Initiatives Undertaken at the Italian Level by the Relevant Authorities 9.2.1 Working Documents and Guidelines Provided by Administrative and Political Authorities 9.2.2 IAA Activities on Sustainability and Advisable Actions 9.2.3 Legislative Initiatives on Sustainability at the National Level 9.3 Specific Cases Related to Sustainability Issues Investigated by IAA 10: Sustainability and Competition Law in Malta 10.1 The Concept of Sustainability 10.2 Competition Law and Sustainability 10.2.1 Complementary Objectives 10.2.2 Sustainability and the Enforcement and Advocacy of Competition Law 10.2.3 Competence and Cooperation 10.2.4 Laws, Guidance and Policies 10.3 Conclusion 11: Sustainability and Competition Law in Switzerland 11.1 Introduction 11.2 General Legal Framework 11.2.1 Introductory Remarks on the Concept of Sustainability in Swiss Law 11.2.2 The Role of Sustainability in Swiss Competition Law 11.2.3 The Intersection Between Sustainable Development and Competition Law 11.3 Specific Interaction/Cases 11.3.1 Absence of Cases Where Sustainability Has Played a Role in Competition Law Enforcement in the Form of aSword´
11.3.2 Cases Where Sustainability Has Played a Role in the Enforcement of Competition Law in the Form of a Shield´ 11.3.2.1 Cases Where Competition Law Has Not Been Infringed 11.3.2.2 Cases Where the Comco Weighed the Environmental Benefits Against the Harm to Competition 11.3.3 Illegal Anti-Competitive Behaviour in the Context of Sustainability Initiatives 11.3.3.1 Green Washing 11.3.3.2 Genuine Sustainability Initiatives that Served as a Springboard for Other Anti-Competitive Behaviour 11.4 The Activity of Agencies, Legislator and Specific Commissions in the Field of Sustainability 11.4.1 Public Procurement 11.4.2 Sustainable Finance 11.5 Conclusion 12: Sustainability and Competition Law in the United Kingdom 12.1 Introduction 12.2 Sustainability Agreements and the Chapter I Prohibition 12.2.1 What Is aSustainability Agreement´?
12.2.2 Why Is Cooperation Between Businesses Important?
12.2.3 Recent Developments in the UK
12.2.4 Sustainability as a Shield´ and the Chapter I Prohibition 12.2.4.1 Agreements Not Caught by the Chapter I Prohibition 12.2.4.2 Exclusion from UK Competition Law 12.2.5 The Exemption Criteria and Sustainability Agreements 12.2.5.1 Condition One:Benefits´
12.2.5.2 Condition Two: Fair Share´ 12.2.5.3 Collective Benefits 12.2.5.4 Qualitative or Quantitative? 12.2.5.5 Conditions Three and Four -Indispensability´ and Elimination of Competition´ 12.2.6 Using Competition Enforcement as aSword´ to Promote Sustainability
12.2.7 Conclusion
12.3 Using Abuse of Dominance Laws to Help Take Action for a Sustainable Future
12.3.1 The Chapter II Prohibition as a Sword´ to Attack Unsustainable Practices 12.3.2 Unfair Prices and Conditions [Section 18 (2)(a) CA98 and Article 102(a) TFEU ] 12.3.2.1 Unfair Purchase Prices 12.3.2.2 Predatory Pricing 12.3.2.3 Other Unfair Trading Conditions 12.3.3 Limiting the Production of Products or Services [Section 18(2)(b) CA 98 and Article 102(b) TFEU] 12.3.4 Using Sustainability as aShield´
12.3.5 Some Concluding Remarks on the Shield´ 12.3.6 Conclusion on Abuse of Dominance and Sustainability 12.4 UK Merger Control and Sustainability in the UK 12.4.1 Sustainability as aSword´: Assessing Sustainability as a Parameter of Competition
12.4.2 Sustainability as a Shield´: Offsetting SLCs with Sustainability Benefits 12.4.3 Consideration of Sustainability Issues in CMA Merger Reviews to Date 12.4.4 Incorporating Sustainability into Merger Control Going Forward 12.4.5 Public Interest Regime 12.4.6 Sustainability and the UK´s Market Inquiry Regime 12.4.7 Conclusion Appendix 1: Simon Holmes, Selected Papers on Climate Change, Sustainability and Competition Policy Part II: Sustainability Objectives in Intellectual Property Law 13: Sustainability and Intellectual Property in Austria 13.1 Introduction 13.2 Current Status of Sustainability in Austrian IP Law 13.2.1 Overview 13.2.2 Patent Law 13.2.3 Trademark Law 13.2.4 Recent M&A Transactions in the Field of Sustainability 13.3 The Role IP Should Play in Sustainability 13.3.1 Overview 13.3.2 Educational Challenges to Foster Sustainable Innovations 13.3.3 Easier IP Application Procedures 13.3.4 Easier Access to Obtain Patent Protection 13.3.5 Easier Access to Innovative Processes Through Knowledge Sharing 13.3.6 Easier Access Through Digitalisation 13.3.7 Drafting New IP Laws for Sustaibable Innovations? 13.4 Improving the Success of IP´s Role in Sustainability 13.5 Conclusion Untitled 14: Sustainability and Intellectual Property in Brazil 14.1 The Current Role IP Play in Sustainability in Brazil 14.2 How This Role Is Pursued 14.3 How to Improve It 14.4 Conclusion 15: Sustainability and Intellectual Property in Germany 15.1 Introduction 15.2 Definition of Sustainability 15.2.1 Legal Understanding of the Term 15.2.2 Social-Ethical Understanding of the Term 15.2.3 Political Science Understanding of the Term 15.2.4 Economic Understanding of the Term 15.2.5 Essential Features ofSustainability´
15.3 Current Status: Intellectual Property Rights and Sustainability
15.3.1 Patent Law
15.3.1.1 Possible Positive Effect of Patent Protection
15.3.1.2 Possible Negative Effects of Patent Protection and Alternatives
15.3.1.3 Efforts of the DPMA
15.3.1.4 Interim Result
15.3.2 Trade Secrets Law
15.3.2.1 Possible Advantages and Disadvantages of Trade Secrets Protection
15.3.2.2 Interim Result
15.3.3 Design Law
15.3.4 Copyright
15.3.4.1 Sustainable Works
15.3.4.2 Official Works
15.3.4.3 Software, Algorithms and Data
15.3.4.4 Interim Result
15.3.5 Trademark Law
15.3.6 Interim Result
15.4 Promoting Sustainability in the Context of Intellectual Property Rights-Outlook and Ideas
15.4.1 Patent Law
15.4.1.1 Green Impact Fund for Technology
15.4.1.2 National Level
15.4.1.2.1 Amendment of Patenting Requirements
15.4.1.2.2 Patent Exclusion
15.4.1.2.3 Accelerated Granting Procedure
15.4.1.2.4 Cost Savings for `Green´ Inventors
15.4.1.2.5 Compulsory Licence and Tacit Licence
15.4.1.2.6 Interim Result
15.4.2 Trade Secret Law
15.4.2.1 Freedom of Information Rights
15.4.2.2 Negative List
15.4.2.3 Economic Value
15.4.2.4 Interim Result
15.4.3 Design Law
15.4.3.1 Exceptions: Essential Interests of Environmental Protection
15.4.3.2 Destruction and Recall
15.4.3.3 Interim Result
15.4.4 Copyright
15.4.4.1 Official Works
15.4.4.2 Data
15.4.4.3 Interim Result
15.4.5 Trademark Law
15.5 Result
16: Sustainability and Intellectual Property in Hungary
16.1 Introduction
16.2 Sustainability Considerations of Individual IP Rights
16.2.1 Current Regulatory Standpoint
16.2.2 Necessary Changes for a Sustainable IP Regime
16.2.3 Further Rights To Be Adopted
16.3 IP Framework in Hungary
16.4 How We Would Amend the Hungarian IP Framework
16.5 Conclusion
17: Sustainability and Intellectual Property in Italy
17.1 Introduction
17.2 Whether IP Has a Role in Sustainability
17.3 The Role That IP Should Play in Sustainability
17.3.1 Trademarks
17.3.2 Designs
17.3.3 Patents
17.4 How Should This Role Be Pursued
17.5 The Success of IP in Its Role for Sustainability
17.6 Improving the Success of IP´s Role in Sustainability
17.7 Conclusions
18: Sustainability and Intellectual Property in Malta
18.1 Intellectual Property and Sustainability in the Maltese Islands
18.1.1 A Brief Overview of Existing Legislation
18.1.2 Existing Local Initiatives, Programmes and Strategies: A General Perspective
18.2 The Role of Intellectual Property in the Journey Towards Sustainability
18.2.1 Introduction
18.2.2 The Role of Intellectual Property in Malta, and How It Should Be Pursued
18.2.3 Creating Change Through New Policy and Legislative Frameworks
18.2.4 Creating Change by Incentivising Sustainable Innovation
18.3 Malta´s Current Intellectual Property Framework
18.3.1 The Current Landscape
18.3.2 Creating Further Rights to Support Sustainability
18.3.3 Enforcement of IP Rights in Malta
18.3.4 The Role of Intellectual Property Authorities in the Journey Towards Sustainability
18.3.5 The Way Forward
18.4 Promoting National and International Cooperation
18.4.1 The Role of International Treaties and Agreements
18.5 Conclusion
19: Sustainability and Intellectual Property in Sweden
19.1 Background
19.1.1 European Conformity
19.1.2 Defining Sustainability
19.2 The Current Role of IP in Sustainability
19.2.1 Swedish Public Policy on Sustainability
19.2.1.1 The Position of the Intellectual Property Office
19.2.2 European Public Policy on Sustainability
19.2.3 International IP Policy on Sustainability
19.2.3.1 Technology Transfers
19.2.4 The Current Role of IP in Sustainability
19.3 IP´s Contribution to Unsustainability
19.3.1 Barriers to Innovation
19.3.2 Corrective Measures in Cases of Infringement
19.3.3 The Neutrality of IP vis-à-vis Sustainability
19.4 Empowerment of Consumer Choices
19.4.1 Sustainability in Unfair Competition
19.4.1.1 Environmental Benchmarking and Labels
19.4.1.2 Burden of Proof in Marketing Communications
19.4.2 Facilitation of the Circular Economy
19.4.3 Consumer Choices in a Successful Role for Sustainability
19.5 Discussion on Possible Improvements in IP for Encouraging Sustainability
19.5.1 How IP Rights Can Better Contribute to Sustainability
19.5.1.1 An Introduction of Conditions for Acquiring and Subsisting of IP
19.5.2 Possible Restrictions on Enforcement of IP in Favour of Sustainability
19.6 Concluding Remarks
20: Sustainability and Intellectual Property in Switzerland
20.1 Introduction
20.2 Swiss IP Legal Framework Current Role in Sustainability
20.2.1 Preliminary Remarks
20.2.2 Swiss IP Legal Framework
20.2.3 PatA and PatO
20.2.3.1 Compulsory Licences
20.2.3.2 Disclosure of Source
20.2.3.3 Fast Track
20.2.4 TPA
20.2.4.1 Certification Marks
20.2.4.2 Collective Marks
20.2.5 CopA
20.3 Specific and Current Measures for Sustainability in Switzerland
20.3.1 Mandate of the Swiss IP Office re Swiss 2030 Sustainable Development Strategy
20.3.2 Measures
20.3.2.1 WIPO GREEN Partnership
20.3.2.2 Cooperation Projects
20.3.2.3 Technology Transfer Agreements Templates
20.3.2.4 National Open Access Strategy
20.3.2.5 Innosuisse: Swiss Innovation Agency
20.3.2.6 Swiss Cleantech Report Contribution
20.3.3 Prospective Measures
20.4 Conclusion
21: Sustainability and Intellectual Property in United Kingdom
21.1 The Role of Intellectual Property in Sustainability
21.1.1 Introduction
21.1.2 Patents
21.1.3 Trade Secrets
21.1.4 Trademarks
21.1.5 Copyright
21.1.5.1 Artificial Intelligence
21.1.5.2 Data and Databases
21.1.6 Designs
21.2 Impact of IP on Sustainability
21.2.1 Positives
21.2.1.1 Accessibility and Transparency of IP Registries
21.2.1.2 The Green Channel
21.2.1.3 Specific Positives of Designs Regime
21.2.1.4 Certification Marks
21.2.2 Negatives
21.3 Impact of Differing Approaches by Owners/Controllers of IP Rights
21.4 Normative Role of IP in Sustainability
21.4.1 Introduction
21.4.2 Incentivisation and Co-operation
21.4.3 The Sustainability Dichotomy
21.4.4 Pursuing This Role
21.4.4.1 Incentives and the Registration of IP Rights
21.4.4.2 The Conditions for IP Rights to Subsist
21.4.4.3 Creation of New IP Rights to Support Sustainability
21.4.4.4 The Enforcement of IP Rights Against Third Parties
21.5 Success (or Otherwise) of IP´s Role in Sustainability
21.5.1 IP Supporting Sustainability
21.5.1.1 Technological Development and the Relationship with IP
21.5.1.2 Information and Data from IP Registering Authorities
21.5.1.3 Procedures and Fees of the IP Right Granting Authorities
21.5.1.4 IP Incentivisation Schemes
21.5.1.5 IP Enforcement Systems/Authorities
21.6 Conclusion