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Article 102 of the Treaty on the Functioning of the European Union prohibits any abuse by one or more undertakings of a dominant position on a substantial part of the internal market which affect trade between Member States.
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Competition law and joint ventures—checklist This checklist summarises the competition law considerations relevant to both structural and non-structural joint ventures (both merger control rules and antitrust laws). Structural or non-structural? The key consideration will be to determine whether a proposed joint venture is structural or non-structural/cooperative; the answer to this will determine how the joint venture is to be assessed. Structural joint ventures • A structural joint venture will include arrangements that produce long-lasting structural changes to the market by creating or changing the economic control of a legal entity, for example: ◦ the creation of a joint venture company ◦ the creation of a separate partnership between the parents ◦ changes to shareholder control. • Structural joint ventures will generally always fall within merger control rules (depending on notification thresholds being met). If merger control rules don't apply, it will be necessary to consider antirust rules. Non-structural/cooperative joint venture • A non-structural and/or cooperative joint venture will not include any changes to the economic control of any...
Assessing technology transfer agreements—checklist This Checklist can be used to help assess the compliance with EU competition law of technology transfer agreements where one party (a licensor) grants to another party (the licensee) the right to exploit intellectual property (including patents, know-how, design rights, utility models and/or software copyright). See further, Assessing IP-related agreements under the Technology Transfer Block Exemption Regulation. Framework for assessment The European Commission (Commission) has published Guidelines (TTBE Guidelines) which assist parties to assess the application of the technology transfer block exemption (TTBE). When considering the exercise and licensing of intellectual property rights (IPRs), it is necessary to consider the following: • Article 101 TFEU ◦ The first question is whether the agreement is caught by Article 101(1) TFEU at all (in practice TTBE (and relevance of other block exemptions) may often be considered before Article 101 TFEU). It will be necessary to consider: ‣ Whether the agreement is liable to affect trade between Member States. ‣ Whether the agreement restricts competition at all as...
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Resale of second-hand software When commercial software is acquired from a software supplier, a non-exclusive licence is usually all that is obtained. The supplier retains copyright ownership in the code—they permit a transfer or download of the code to the buyer, and, in exchange for a fee, the buyer takes a licence subject to often extensive terms and conditions. Although software is commonly referred to as being ‘bought’ or ‘sold’, the legal basis is (at least for commercial applications) that there is invariably no transfer of ownership. Only a limited right to use is being acquired. This Practice Note considers the legal and commercial issues surrounding whether such licences if no longer required by the licensee can be ‘resold’, ie assigned to a new user. Second-hand software market This Practice Note is concerned with the resale of business software—as opposed to games software; this has different characteristics namely, the incorporation of music, pictures and animation which raise additional copyright issues. Following the ruling by the EU’s Court of Justice...
Qualcomm (exclusivity payments) (AT.40220) [Archived] CASE HUB (NOTE—appeal lodged by Qualcomm before the General Court in Case T- 235/18) ARCHIVED–this archived case hub reflects the position at the date of the decision of 24 January 2018; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission Article 102 TFEU investigations into Qualcomm, looking at abusive exclusivity payments in relation to baseband chipsets (Case AT.40220). Latest development On 24 January 2018, the Commission issued its infringement decision against Qualcomm, finding that it abused its dominant position by offering significant exclusivity payments to a key customer on the basis that it would not source supplies from competitors. The Commission imposed a fine of €997,439,000 on Qualcomm. Parties Qualcomm, a US based company headquartered in San Diego (California), designs and markets wireless telecommunications products and services from 157 locations throughout the world. It is the world's largest supplier of baseband chipsets. Background On 16 July 2015, the Commission...
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In a written intellectual property licence that satisfies the English law requirements for creation of a contract and that is not in conflict with competition laws, can royalties be contractually agreed to be paid in perpetuity? It has been assumed that this Q&A refers to validly created licences and individual IP right licence requirements (ie whether must be in writing and signed etc) have not been covered. As such in conducting our research, we have focused on IP licence agreements in which royalties are payable. There are many different types of UK IP licence. Such licences are governed by IP right specific laws such as the Copyright, Designs and Patents Act 1988, the Patents Act 1977 or the Trade Marks Act 1994. Technology transfer licensing is subject to UK and EU competition laws. Licences are also governed by common law. A perpetual licence may be granted (and the payment of royalties tied to the term of the licence). However, the period of the licence cannot extend the...
In the context of an English law agreement what is a ‘preferred supplier’? Might there be any regulatory issues to consider in connection with the appointment of a ‘preferred supplier’? What is the meaning of ‘preferred supplier’? The term ‘preferred supplier’ is often used in business, however it has no definitive or clear meaning in English law. Differing views of the meaning of the term are possible. For example the phrase might be intended to mean that the supplier would fall into one or more of the following (often mutually conflicting) categories or have some other meaning: • it may not be offered any work but is on an ‘approved’ list and so does not have to repeat certain retendering exercises • if offered work, it will be offered terms of trade that are no less favourable than those offered to any other supplier • it will always be offered certain work unless a competing supplier offers better terms • it will be offered a minimum...
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This week's edition of Competition weekly highlights includes, from a UK perspective: (1) the CMA issues an interim report in the Spreadex/Sporting Index remittal merger and provisionally finds competition concerns, (2) the CMA launches a consultation on draft rules for a levy for the digital markets competition regime. This week's highlights also includes, from an EU perspective: (1) an AG opinion concerning a national reference from the Czech Republic seeking clarification as to whether a collective management organisation’s failure to account for hotel room occupancy when setting copyright royalties for licensed works constitutes a breach of Article 102 TFEU, (2) an AG opinion concerning a national reference from Sweden seeking clarification as to whether compensation provided to a company owned by a Swedish municipality constitutes new or existing aid, and (3) the Commission launches a consultation on a revision of the SGEI State aid rules to address the issue of housing affordability.
This week's edition of EU Law weekly highlights includes analyses on the Court of Justice’s ruling addressing the meaning of ‘promotional offer’ under EU E-Commerce Directive, the first Unified Patent Court’s infringement decision for second medical use claims and the transparency and disclosure obligations for AI Chatbots in consumer interactions. In addition this week, the Commission launched a consultation on high-risk AI classification and obligations, introduced the EU Sanctions Helpdesk, a free service providing sanctions compliance support to European small and medium-sized enterprise, adopted the European Ocean Pact, a comprehensive strategy designed to protect marine ecosystems, the International Swaps and Derivatives Association published a position paper in response to the Commission's sustainability omnibus package, the European Data Protection Board adopted final guidelines regarding data transfers to third country authorities, the Council of the EU adopted a new cyber crisis management blueprint to guide the EU’s collective response to large-scale cybersecurity incidents or crises and adopted its position on the revision of the EU regulations on air passenger rights and airline...
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