Antitrust Implications of Technology Consortia

Master's Thesis from the year 2003 in the subject Law - Civil / Private, Trade, Anti Trust Law, Business Law, grade: Distinction (14 of 15), University of Bonn (Centre for European Integration Research, Bonn), course: Centre for European Integration Research, Bonn, language: English, abstract: The Competitiveness Council (Erkki Liikanen from DG Enterprise andInformation Society, Philippe Busquin from DG Research and Mario Montifrom DG Competition meeting at Brussels on November 26, 2002)emphasized the need to create a European Research Area, which is to beunderstood as a true internal market for science and knowledge. It isparticularly important to ensure consistency between the national and theEU Research and Development (R&D) policies in order to increaseinvestment in research and enhance the innovation and technology transfercapacity. In boosting the potential of the European Research Area certainframework conditions need to be transposed into practice among which ‘acompetitive environment with research and innovation-friendly regulationsand competition rules’ is the most relevant to the present thesis.Although technology consortia are rarely subject to antitrust scrutiny,guidance is needed for a number of reasons. The very peculiar nature oftechnology consortia can make it hard, if not impossible, to characterize aconsortium into specific categories such as horizontal, vertical orconglomerate, which in turn makes it difficult to clearly delineate anyantitrust concerns. Furthermore, the European competition law regime is ina crucial transformation process. With effect of 1 May 2004, the date ofentering into force of Regulation 1/2003 the whole of Article 81 will bedirectly applicable in the member states. Thus any anti-competitiveagreement is no longer to be notified to the Commission for a compatibilityassessment under Article 81(3). Instead companies will have to assess thecompatibility of their agreement with Article 81 on their own.In seeking guidance, the Commission likes to refer to its forty yearlong decisional practice during which it has had the monopoly to handlenotified cases in respect of Article 81(3). Not surprisingly, uncertainties stillremain. This is not to say that the decisions are not helpful, but rather thatlaw is subject to interpretational developments. It is particularlycompetition law that is rightfully influenced by economics and must bedetermined in the individual setting. The law can not therefore provideanswers to all issues that have arisen due to commercial developments andchanging technology, which is why guidance on specific industry aspectsactually adds value. [...]