Innovation Competition

Name: Innovation Competition | The novel theory of harm in the Dow/DuPont merger and its application in the scope of Article 101 and 102 TFEU
Brand: Nomos
Price: 82.0 EUR
Availability: OnlineOnly

The novel theory of harm in the Dow/DuPont merger and its application in the scope of Article 101 and 102 TFEU

Katrin Silja Kurz(Autor*in)

Nomos (Verlag)

1. Auflage

Erschienen am 28. März 2022

287 Seiten

E-Book

PDF mit Adobe-DRM

Systemvoraussetzungen

978-3-7489-3336-6 (ISBN)

82,00 €inkl. 7% MwSt.

Systemvoraussetzungen

für PDF mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Weitere Details

Weitere Ausgaben

Inhalt

Cover
I) Introduction
II) Innovation Competition: The Dow/DuPont Decision
A) Innovation, competition and the internal market
1) The internal market
(a) Definition and guiding principles
(b) The notion of competition in the internal market
2) Innovation and the internal market
(a) Research and development as an objective in the EU Treaties
(b) European research area
(c) Competitiveness of the Union
(d) Research and development vs. innovation
3) The Position of Competition Law: Innovation as a Driving Force
(a) Background: The process of creative destruction
(b) Competition Rules in the Treaties
(c) Secondary Competition Law: EC Merger Regulation
(d) Guidelines and approaches from other jurisdictions and areas of law
4) Intermediate result
B) The Dow/DuPont Decision
1) Overview of the Decision
2) The Commission's legal basis for innovation concerns in merger control
(a) Legal basis in EC Merger Regulation
(b) The Commission's Horizontal Merger Guidelines and innovation
(c) The Commission refers to US Guidelines and EU Technology Transfer Guidelines
3) Theory of harm in Dow/DuPont
4) Underlying rationale
C) Classification and appraisal
1) Theory of harm and underlying rationale
2) Unilateral Effects Analysis
3) Protective purpose and time horizon
4) Innovation markets, innovation spaces and innovation competition
5) No product/pipeline analysis
6) Importance of specific industry features
7) Written evidence of reducing innovation efforts
8) Integration of the Commission's approach into the existing legal framework
D) Economic foundation
1) Annex 4 of the Dow/DuPont Decision
(a) Competition in innovation
(b) Product market competition
(c) Efficiencies: Focus on Appropriability
(d) Dynamic market features
2) The Federico / Langus / Valletti papers
3) Intermediate result
E) Remedies: Divestment of R&D organization
F) What is new in Dow/DuPont?
1) Preceding Innovation Cases
(a) Cases incorporating innovation competition aspects
(b) Intermediate result
2) Innovation Market Analysis
(a) Concept of the Innovation Market Analysis
(b) Intermediate result
(c) Critique on the Innovation Market approach
G) In need of a new theory?
1) The potential competition doctrine
2) The future markets concept
3) Innovation competition
H) Is the innovation competition approach valid?
1) Link between innovation and competition
(a) Standard for incorporating economic reasoning in competition law
(b) The Schumpeter/Arrow controversy
(c) Notion of appropriability
(d) Additional factors determining the relation between innovation and competition
(e) Intermediate result
2) Measuring innovation capacity
3) Differences between price and innovation
4) Presumption towards decreased innovation incentives: weighing of other factors
5) Efficiencies
(a) Efficiencies in the Horizontal Merger Guidelines
(b) Efficiency assessment in Dow/DuPont
(c) Appraisal
(1) Efficiencies are part of the underlying theory of harm: no burden of proof with the parties
(2) Efficiency criteria of the Horizontal Merger Guidelines are not fit for innovation competition
(d) Conclusion on efficiencies
6) General requirements of the SIEC test
7) Legal Certainty and the right to realize concentrations of undertakings
(a) Constitutional basis
(b) Application in Dow/DuPont
8) Appropriate remedies
I) Conclusion
III) Innovation Competition and the scope of its application in EU Competition Law
A) Restrictive Agreements according to Article 101 TFEU
1) Possible starting points for innovation competition concerns in Article 101 TFEU
(a) Innovation aspects in Article 101 TFEU
(b) Competition in innovation in Regulations and Guidelines on Article 101 TFEU
(c) Innovation Markets in U.S. Guidelines
(d) Differences between existing concepts and innovation competition approach in Dow/DuPont
2) Applicability of innovation competition in the scope of Article 101 TFEU
(a) R&D cooperation
(1) Negative effects on innovation incentives
(aa) Innovation incentives of the cooperating parties
(bb) Third party incentives
(cc) Economic findings on the interrelation between cooperation and innovation
(2) Reduced number of entities performing R&D
(3) No adjustment of Guidelines
(b) Technology transfer
3) Conclusion
B) Abuse of a dominant position according to Article 102 TFEU
1) Possible starting points for innovation competition concerns in Article 102 TFEU
(a) Legal basis for incorporating innovation concerns
(b) Factors determining market power
(c) Innovation-driven competitive pressure in German law
(1) Application in practice
(2) Appraisal
2) Incorporating innovation competition into Article 102 TFEU
(a) The rationale behind Dow/DuPont and Article 102 TFEU: assessment criteria
(b) Oligopolistic market structure
(c) SIEC test versus dominant position
(d) Dynamic aspects in Article 102 TFEU
3) Kinds of abusive behavior that interrelate with innovation capacity
(a) Definition of abusive behavior
(b) Kinds of abusive behavior impacting innovation incentives
(1) Refusal to supply
(2) Misuse of regulatory framework
(3) Discrimination
(4) Treatment of those and other kinds of conduct
4) Powers of the Commission with respect to important innovators
(a) Fines and procedural principles
(b) Other Commission powers
5) Conclusion
C) Allocation of the result in primary law
1) Function of Article 101 and 102 TFEU in the internal market
2) Development of the EC Merger Regulation
3) Interrelation between Article 101 and 102 TFEU and the EC Merger Regulation
4) Innovation competition and Article 101 and 102 TFEU
5) Conclusion
IV) Summary
A) Innovation Competition in Dow/DuPont
1) Rationale in Dow/DuPont
2) Protective purpose and time horizon
3) Innovation competition and innovation spaces
4) The approach in Dow/DuPont is novel and necessary
5) Under certain circumstances, a link between innovation and competition may be established to the requisite legal standard
6) Other factors impacting innovation must be taken into account
7) The treatment of efficiencies must be altered with respect to innovation
8) Dow/DuPont is anchored in primary law
B) Innovation Competition and the scope of its application in EU Competition Law
1) Restrictive agreements according to Article 101 TFEU
(a) Starting points for an assessment under Article 101 TFEU
(b) No application of the innovation competition approach in case of R&D cooperation
(c) No application of the innovation competition approach in cooperation settings in general
2) Abuse of a dominant position according to Article 102 TFEU
(a) Starting points for the assessment under Article 102 TFEU
(b) The notion of an "important innovator" developed in Dow/DuPont may be used to determine market dominance
(c) The importance of innovation capacity in abuse of dominance cases is restricted to certain kinds of abusive behavior
(d) The powers of the Commission may be restricted in settings involving important innovators
(e) The criteria set up in Dow/DuPont for determining an important innovator may be used in the context of abuse of dominance
3) Allocation of the result in primary law
Bibliography

Systemvoraussetzungen

Als PDF speichern Als Link merken