Is the EU Fundamentally Out of Touch with Commercial Realities - Coursework Example

1.0 Executive Summary The evolution of privatization as well as translational trade and investment, and the protracted two-pronged and polygonal trade agreements have enhanced fiscal integration, which has impacted almost all nations globally. This new reliance on restricted endeavour has brought about myriad variations in the fiscal arrangement and production ability of the economically evolving nations. Nevertheless, it has also created progressing nations more susceptible to modern and dangerous forms of ant rivalry trading traditions. Putting proficient guiding framework in regions to ensure that commerce competes is an intricate and composite task, Teece, D. & M. Coleman (1998). Table of contents 1.0 Executive Summary 1 2.0 Research 2 3.0 Is the EU Fundamentally Out of Touch With Commercial Realities 4 4.0 Can businesses regulate themselves on this issue 15 5.0 Conclusions 17 2.0 Investigations Preceding decades have witnessed enormous variations in the mode progressing nations administer their economy. It is observable that most regimes are drifting away from central planning toward underpinning a free fall market economy and enhancing the expansion of remote, independent owned commerce. Most state economies have become rather reliant on the abilities of personal companies that have been decisive regarding manufacturing of goods as well as services oriented on bazaar indicators. A gesture of liberalization across the globe has seen regimes pull out, in great aspect, from offering goods as well as structures and social amenities for their persons, Wilberforce, Richard (1996). National variations have taken place at the same interlude as enormous changes have swept the universal economy. Commodities commerce has become liberalized and more capital is accessible. Companies ubiquitously are advice to export while coupled with greater competition from imports no longer subject to high tariffs as well as foreign forms that construct commercial operations locally. More so, corporate organizations found in developing nations are progressively related with trading overseas by means of authorization, outsourcing, or long term purveying dealings. Conversely the bazaar is never completely liberal. Hindrances can emerge from the state that endeavors to secure its people. Privatized services and structure utility purveyors are controlled guarantee first rate coverage as well as eminent utility; financial structures are subject to prudential as well as other restrictions to guarantee constancy as well as good concert; health service suppliers have to meet regime-set specifications of care and conduct; and manufacturers of goods and utility have to abide by quality, functionality and safety specifications. A subsequent aspect of moderation emerges within the bazaar and is immensely objected at exploiting and over-taxing clients and regimes. Hush-hush companies conglomerate to agree on artifacts costs as well as utility, disagree to compete with each other or to outwit new entrants or in the case of mammoth companies, fundamentally exploit their supremacy in the bazaar. With the advents of globalization emerge the probability that these restriction enhance for the diffusion of proceeds as well as earnings overseas. Regimes are not always blameless in this subsequent form of restraint; inadequately developed control, inadequate supervision, opaque bidding traditions, as well as unqualified dishonesty all hamper with rivalry. Myriad legal structures and edicts do subsist to contradict this latter form of temperance. Collectively acknowledged as competition regulation, as well as policy, they have also been known as antitrust or antimonopoly set of laws. Divergent terms depend enormously on mores and practices rather than the substance of the edicts and policies themselves. Dominion has been viewed as a profligate and as closing off prospects for rival companies to sell off their artifacts. The affinity for proficiency and to enhance entry and novelty have supported much of the efforts to pump in more aggression into financial systems ever since. The creation of contemporary opposition law barely in truth was initiated after WWII. Previously, most countries had some market-regulating rules; thus leaning towards and favoring well established as well prominent companies in the league in opposition to clientele and diminutive players justifications for the enhancement in rivalry policy after WWII was the functionalities that anticompetitive traditions cooperate in the run-up to war itself. 3.0 Is the EU Fundamentally Out of Touch With Commercial Realities In contrast to the criticisms of the arbitrary application of Article 82 to an evolving business framework, previous EC Commissioner General's Faull and Nikpay of the EC Commission's Competition Directorate General argue that any such alteration to Article 82 is unnecessary and comment that "there seems to be no important conflict between innovation and competition policy aimed at product market competition and there seems to be no fundamental flaw in competition policy. Competition policy by defending competition and open markets will in general have a positive impact on both static and dynamic efficiency. Companies under competition pressure will be less complacent and will have more incentive to innovate and gain market share. Product market competition and a strict competition policy generally work as an effective stick to promote innovative effort" (Faull & Nickpay, 2007). Conversely, as highlighted above in section 2.4, it is submitted that the problematic application of Article 82 to intellectual property law rights (IPR) symbolises the inherent conflict between innovation and protection against abuse of monopolies, which is the overriding purpose of Article 82. The inherently monopolistic nature of intellectual property rights have proved particularly problematic in EC competition cases, particularly in context of the essential facilities doctrine (Shah 2004). If we consider the evolution of the case law in this area, in the case of Establishments Constant SA v Grundig-verkaufs GmbH V Commission (1966 ECR 352), the ECJ implemented a distinction between the grant of a national IPR, which did not plummet within the European Community concordat and the exercise of an IPR, that fell within the fall inside the territory of the EC treaty provisions for the purposes of competition law. It further held that the EC competition provisions did not automatically negate the application of IPR rights, however in this case an injunction was granted to prevent parties from using their national trademark to prevent parallel imports. Nevertheless, the competition policy has been a paramount consideration in shaping judicial determinations and in this case it was asserted that national trademark holders could not abuse their legal position under national law to negate the applicability of Community law provisions preserving free trade and anti-competition procedures. This somewhat artificial existence and exercise distinction was applied in line with the principles of undeviating impact as well as preeminence of EC law, that in turn highlights an EC in turn highlights an EC supremacy approach to competition policy, which arguably further negates the relevance of IPR protection and rights of holders under the supremacy paradigm and somewhat arbitrary application of Article 82. However it is precisely what constitutes abuse that has been problematic in practice. Nevertheless, the existence and exercise distinction was upheld in the Magill case which has been further applied in the compulsory licence cases ([1995] ECR I-743). Moreover, the EU developed the subject matter test, for example in the case of Centrafarm v Sterling However, whilst the subject matter test was originally applied in respect of Article 30; in the Magill case the ECJ extended the subject matter test to Article 82 and appeared to create an artificial distinction (Shah, 2004). This has arguably highlighted the need to reconsider the application of Article 82 in the contemporary business framework particularly in light of Korah's comments" (Korah, 2002). Indeed, the very nature and purpose of granting IPR is the return of a dominant position as a reward for innovation and creativity in a particular field. However, the implementation of Article 82 has led to criticisms of the ECJ controlled system of IPR rights in the EC, which further supports the rationale for the hypothesis in this dissertation (Korah, 2002). For example, Ahlborn et al argue that in the "new economy industries; the incumbent typically has a large market share since competition is often a matter of winner takes most. Their large market share however is under permanent threat from innovating competitors and they are only able to retain their position if they continue to innovate" (Ahlborn et al, 2006 at p.162). Jones et al give the example of Nokia's market share losing if it left innovation to competitors (Jones et al, 2007). Jones et al further argue that the central difficulty faced by the application of Article 82 in the contemporary marketplace is the extent to which competition law should pursue its goals whilst preserving the necessary environments for innovation and new markets. To this end it is submitted that the competition rule should be reformulated to address the following: 1) Prejudicial consequences of market power; 2) Categorization and dealing with oligopolistic markets; 3) prevent mergers that lead to a concentration in market power; 4) prevent restrictive vertical agreements which have anti competitive consequences (Jones et al, 2007). Moreover, Ahlborn et al posit that equating high market shares with dominance in the case of these "fragile monopolists" of the new economy is "potentially very damaging to innovation and competition as EC competition law imposes a special responsibility to the market upon dominant firms Apart from the fact that this special responsibility often prohibits welfare-enhancing action where it has a negative effect on rival's profits, in the new economy it prevents companies with high market shares [whichh nevertheless are under competitive threat and do not have the power to act independently of competitors and customers] to compete vigorously on an equal footing with their rivals" (2006, p.162). To this end, Jones et al argue that the Competition Commission's Discussion Paper about the central purpose of market definition being to decipher the immediate competitive constraints facing the undertaking and all actual competitors is misconceived particularly in context of "dynamically competitive markets because of the important there of potential competition". (Jones et al, at p.430). Moreover, they argue that a multi attribute self regulatory model is more appropriate to address the performance attributes of one product induces substation and the new economy market definition in EC law has arisen so far more in merger investigations than in the Article 82 context (Jones et al, 2007). Additionally, they highlight the point that a central problem with the new economy market is the network externalities and the more users a network has the more valuable it becomes to an individual user (Jones et al, 2007). Once a network has a certain number of users therefore the "market may tip towards that network. That is why it is sometimes said that competition may be for rather than in the market the winner may be aided by the behaviours of the producers of complementary products who will want to design products (such as software) which are compatible with the dominant network" (Jones et al, 2007 at.p430). This necessarily means that more customers will be attracted to the dominant network because of the large number of complementary products associated with it. So it will become a vicious circle. On the other hand, some consumers may be better served by one network and some economists such as Veljanovski argue that the market effects can be exaggerated (Veljanovski, 2001). It is further submitted that of additional importance is the definition of relevant product market as highlighted in the previous section. In determining relevant market, it is submitted that the ECJ application of Article 82 can have the result of narrowing legitimate fields of exploitation of IPRs and to this end, a barely distinct bazaar can produce the outcome that possession of an intellectual asset right can correspond with or augment to a dimensional of dominion on a market by minimizing the likelihood of surrogates. In actual sense, this puts academic chattels proprietor in a monitored cluster under Article 82 (Shah, 2004 With regard to the dominant position as regards IPRs, in the Magill case, the ECJ asserted that "Until now overriding position is apprehensive, as from the beginning, in that the mere ownership of the intellectual property right cannot confer such a portfolio (1995). Moreover in the Hoffman v Centrafarm (1978) case the ECJ seized an axiom that 'to the scope to which the practice of a trademark right is legitimate in respect with the stipulations of item 86 (now 82) of the concordat, on the sole ground that it is the act of undertaking occupying a dominant position on the bazaar in the event that the brand name right has not been employed as an object for the abuse of such level. 2.0 Therefore there is clearly a distinction between holding a dominant position via IPR rights and abusing it as acknowledged in the case of NDC v IMS (2002, 4 CMLR, 111). Therefore, as regards IPRs it is evident from the Volvo and Magill decisions that mere IPR ownership will not give rise to an abuse per se and in Volvo case, the ECJ asserted 3) No justification for the refusal to licence/supply; and However, if we consider this in light of innovative markets, the creation of a new market based on consumer lead multi-channel retail strategy will necessarily lead to the lack of substitutability in the initial stages. Indeed, Teece and Coleman argue that "there is a general consensus, however, that competition authorities need to be sensitive to special characteristics of new economy markets and refrain from moving against dominant positions which are ephemeral" (1998 at p.431). In the case of Oscar Bronner v Media print (1999 4 CMLR 112). However, this was refuted in NDC v IMS (2002 & 2004) and it was determined that exercise of copyright could amount to abuse even in the absence of additional conduct where inter alia it prevents appearance of a new product. However, the failure to define new product means that circumstances remain unclear as to when the IPR owner's refusal to licence the IPR will violate competition law under Article 82, which is clearly compounded by the weakness of Article 82 to address commercial realities. Additionally, as a result of Magill and NDC decision the market demand for a new product appears to effectively limit the rights of an IPR owner (Shah, 2004). This in turn, perpetuates uncertainty by failing to define the dimensional functionality of the explicitly conditions circumstances trial in affiliation to IPR licensing and therefore Lang argues that refusal to license IPRs could be contrary to Article 82 (Lang, 1997). This legal ambiguity is further perpetuated by the fact that in some of these decisions the EU have appeared to treat IPRs as essential facilities, which arguably diminishes the exclusivity and purpose of IPR protection, further compounded by the lack of definition of an essential facilities doctrine (Shah 2004). A prime example of this has been the Commission's approach to the Microsoft Windows operating system. For example, the case of Commercial Solvents v Commission (1974] ECR 223), arguably provides a prime example of the nature concerning fundamental apparatus traditions in the perspective of refusal to supply. In this case, Commercial Solvents refused to resume the supply of aminobutanol to Zoja, an Italian Pharmaceutical company. The result of this was that Zoja could not carry on its business of making anti-TB drugs and therefore faced elimination from the market. This was further compounded by the fact that Commercial Solvents was competing in the same market as Zoja. The ECJ held that this refusal to supply constituted abuse of dominant position on grounds of the essential facilities doctrine, as Zoja were effectively prevented from continuing its business on grounds of the essential facilities. If we consider the abuse of the refusal to supply in context of intellectual property rights, this has proved complex and controversial in practice with no harmonization of copyright law in the EU member states (Shah 2004). Moreover, in the case of IMS Health v NDC Health ([2004] All ER 813) it was determined by the ECJ that it was sufficient rather than mandatory that the conditions in Magill be complied with for a refusal to licence or grant copyright to constitute abuse within Article 82, which arguably widens the exceptional circumstances category. In the IMS case, the ECJ upheld then CFI decision ordering a compulsory licence to IMS to grant access to NDC to its copyrighted brick structure, which had become the pro forma pharmaceutical industry standard in Germany. The ECJ appeared to ignore the fact that there was no modern artifact for which there was prospective clientele demand (Shah, 2004). Moreover, this is further supported by the fact that the overriding consideration of the ECJ in IMS was the fact that IMS' dominance and refusal would effectively prevent NDC would be prevented from entering the market and therefore suggests that elimination of competition and dominance appear to be the overriding factors as opposed to any consideration of IPR rights thereby ignoring business realities. To this end, Derclaye posits that the IMS decision clarifies the state of earlier case law in relation to when refusal to licence copyright will constitute abuse under Article 82 (Derclaye, 2004). Moreover, Derclaye comments that "the decision can be positively criticized for the fact that the Court has finally clarified the case law on abuses of dominant position by copyright holders and that it conciliates copyright and competition laws" (2004 at p.1). However, the nature of new product remains ambiguous, which clearly fuels legal uncertainty and "allows the imposition of the licence immediately, which might undermine copyright holders' efforts and reduce their incentive to create in the first place" (Derclaye, 2004 at p.1). 4.0 Can businesses regulate themselves on this issue The above analysis not only highlights the fact that the EU competition law rules fall short of addressing business realities, the fragmentation of the market clearly lends itself towards the argument of self-regulation as hypothesized in this dissertation. It is acknowledged at the outset in this dissertation that complete self-regulation is imperfect; however it would clearly be quicker and more cost effective than the current approach. Moreover, the prolific rate of emerging markets particularly in the wake of the e-commerce business model arguably highlights the inherent weakness of Article 82 to address dominance based on arbitrary determinations of "relevant market". It further suggests the need for categorization and tailored industry specific regulation. It is submitted that this argument is further supported by a comparative analysis with the applicability of the Mergers Regulation particularly in context of the media industry. For example, Pereira in particular refers to the EU competition law's struggles with the media industry and comments that "logically, the EU competition law could not stay immune from the consequences of convergence in the media industry and the assimilation of its consequences is apparent" (Pereira, 2002). Pereira further highlights the data sharing capabilities and information dissemination offered by the digital era and the dematerialization of media products traditionally sold in a physical format by "transforming them into packages of bytes" (Pereira, 2002). As such, this has enabled convergence of separate media into single products, such as the assimilation of text, sound, video and voice into multimedia formats. Coupled with the deregulation of the media this has demonstrated a trend in the media industry towards "concentration" with the "create one place everywhere" mantra "illustrating the need for media producers to place their products in the largest possible number of different platforms" (Pereira, 2002). This is evidenced by key mergers such as AOL/Time Warner and Vivendi, which has created vertically integrated companies exploiting every level of the traditional value chain. The Merger Regulation applies to this area by applying a dominance test analogous to article 82. However, the Commission appears to have been more in tune with the realities of the business. For example, in the Vivendi cases, the Commission acknowledged that the changing marketplace and multimedia evolution had created the need for vertical integration however was aware of serious competition issues and "the approach taken by the Commission was therefore not to prohibit these operations but rather approving them subject to certain strict conditions" (Pereira, 2002). The main concern of the Commission was to ensure access to the source and in the Vivendi/Seagram/Canal + merger the parties undertook to grant access to Universal's music content to third party on non-discriminatory basis, reducing concerns in respect of Internet portals market and online market. Moreover, they undertook to provide no more than 50% of Universal's film production to Canal+ thereby reducing market foreclosure concerns. The key issue was ensuring access in Commission's approach to mergers. Indeed, the Commission's approach highlights that media market is further changing in the multimedia marketplace and as Pereira comments "that may see consolidation soon rather than concentration which will raise further competition" (Pereira, 2002). The pragmatism of the Commission's approach in applying the dominance provisions of the Merger Regulation (2004) is a welcome approach in application of competition law rules by understanding the particular market. To this end it is submitted that a degree of self regulation under bespoke categorization focusing on the "access" issue as opposed to market share would be a welcome and potentially viable option going forward. 5.0 Conclusions The central dynamism that revolves around the fundamental criticism of Article 82 is that the Commission's rigid and somewhat arbitrary application as regards dominance, often ignoring the realities of commerce particularly in relation to the emerging markets and "overestimating undertakings' market power, and lacking sophisticated economic analysis"(Jones et al, 2007 at p.431). This is further compounded by the fact that focusing on relevant market is weakened by the inherent uncertainty of defining market definition, which as evidenced by the detailed analysis in this discussion can exclude certain products. Moreover, the narrow substitutability test ignores the fact that there are degrees of substitution (Shah 2004; Jones et al, 2007). Furthermore, the presumption of dominance depending on the market share test can ignore the fact that in practical terms the business may not have significant market power and it further ignores the changing nature of markets and the definition of "market space" in the evolving contemporary business model. To this end, it is submitted that the market share approach is outdate and fails to reflect the innovative nature of dynamic emerging markets. This is further compounded by the Commission's failure to acknowledge the reality of the market and adopt a short sighted approach focusing on barriers to entry. To this end, self-regulatory codes of practice could ensure that regulations were continually updated to address the changes in the marketplace to ensure continued relevance of competition law regulatory mechanisms. At the centre of the debate in competing ideologies is the point that effective competition law and regulation should preserve consistency between business frameworks through policing of agreements and business practices having the resultant impact of restricting competition, whilst simultaneously facilitating consumer interests (Davies, 2002, at p.137). Moreover, a central objective of the EEC was to achieve the single market and therefore in context of the socio-political backdrop and liberalization, market forces will inherently govern economic behaviours (Smith, 2003). Indeed, Fukuyama argues that the contemporary liberal democracy implies a commitment to market capitalism because these guarantee individual rights in the economic sphere. On this basis, Fukuyama argues that "the triumph of the west.an unabashed victory of economic and political liberalism. (and) the total exhaustion of viable systematic alternatives to Western neo liberalism" (Fukuyama, 1989:3). However, a significant symbol of the "liberal democracy utopia" is free trade and open markets. If we consider this contextually in light of Article 82, the abuse of dominance provision seeks to preserve freedom between member states under a regulatory workable competition framework. It is submitted that economic concepts and true liberal capitalism can converge towards a perfect competition model and monopolies, which create oligopolies, further highlighted by the EEC expansion programme (Bateman, 2006). To this end, the competition policies and enforcement ethos of the Commission has been attacked for sidestepping economic efficiency to artificially create its version of market integration on a level playing field, however Article 82 appears to facilitate allocated efficiency with a barrier to entry focus (Whish, 2003). David Ricardo highlights the point that the concept of a single market is inherently flawed from a competition regulatory perspective as competition between Member States as nations will inherently have discrepancies and comparative advantages and as such, Ricardo posits that states should specialize in their most resourced product and that this should not be penalized or restricted (Whish, 2003 at p.8). Conversely, Ricardo comments that industrialization might reduce monopolistic economies and therefore increasing competition unnaturally through the "workable competition" paradigm "can obstruct circulation of labour and stock.. attacking individual monopolies while leaving other ones intact will simply exacerbate pre-existing allocate inefficiency" (in Whish, 2003 at p9). From this perspective, the economic analysis appears to be influenced by political factors, as larger firms can produce social goods and as such Whish argues the case for natural monopolies as opposed to an artificial "workable competition" legal framework on grounds of economic market efficiency (Whish, 2003). Conversely, Whish concedes that exclusive rights granted by a state can nevertheless distort competition. On this basis, Article 82 is clearly anti-monopolistic in preventing abusive conduct preventing smaller entities from entering the market (Bishop, 1999; Korah, 2000). To this end a monopoly clearly is fuelled by consumer demand, which further increases monopolies against new entrants, which highlights the dual purpose of EU competition law in protection small businesses as well as consumers (Whish, 2003). Alternatively, an objective approach would permit deregulation as a form of self regulation on grounds that self-interest is the interest of the public", which views commerce as individual pockets of economic behaviours within the Community framework (Keynes, 1997: Bateman, 2006). Alternatively, Keynes attacks a market allocation approach and comments that "aggregate economic behaviours does not have the same outcome" and that the Community approach to competition in terms of the Community as a whole is shaped by legal, political and economics (Keynes, 1997: Bateman, 2006). In line with the Keynesian approach, it is further submitted that the failure of Article 82 to address business realities directly correlates to competition legal rules failing to address the economic realities underpinning competition and maximum market efficiency by focusing on rigid tests of market share, dominance and product market. This is further highlighted by the Commission's approach to tying in and bundling in the Microsoft and GE/Honeywell cases discussed in Chapter 4. Moreover classic contemporary economic theory argues that supply streams create their own demand and it is investment in these supply streams, which ultimately fuels consumption. However, Keynes argues that maximization is outdated as it does not utilize the "imperfect competition" and that input cannot be used to "dampen as well as stimulate the economy" (Keynes, 1997). As such, fixed economic models are unable to be applied strictly and therefore effective competition law is undermined by restricting trade flows and arbitrary legal frameworks (Bateman, 2006). Moreover, effective collaboration, mergers and joint ventures can produce national efficiency but as against other countries EC competition law regulates abuses that "may effect trade between Member States", which in line with economic theory is difficult to apply (Bateman, 2006). For example, in the case of Society Technique Miniere v Maschinenbau (1966) CMLR 357 an objective test was proposed on grounds of "direct or indirect, actual or potential distortion, depending on the nature and quality of products concerned, the market share and the isolated or serial nature and its severity, therefore the nature of the undertaking and inter-state abuse are commercial concepts, such abusive undertakings become automatically void." Additionally, in some cases and some markets, an anti-competitive agreement cannot be considered in isolation as it could be beneficial to economic behaviours, particularly in line with the new innovative markets and therefore it can only be assessed by consideration of markets in practice (Jones et al, 2007). Moreover, Article 82 regulates dominant economic behaviours having the "effect of hindering the maintenance.or the growth of competition through the market power to behave independently of competitors, customers and consumers". If we consider the United Brands decision, it was evident that United Brands were able to secure supplies from independent suppliers and were self sufficient. Accordingly, it is submitted that in light of the economic factors shaping competition, competition law is clearly wider than narrow definitions and statistical tests of market share (Whish, 2003). Indeed, whilst in some industries the market share principle is appropriate and ascertainable, in others it is difficult as evidenced by the Commission's approach to tying in and "secondary after-markets" in the Microsoft dispute. To this end, Law should consider the theoretical economic underlying principles as opposed to simply relying on a numerical statistic based approach (Bishop, 1999). It is further submitted that dominant market power may not necessarily be anti-competitive or be indicative of market power per se and therefore Bishop comments that "two goals of the EC competition law are potentially at odds with one another" (Bishop, 1999). Moreover, whilst it is accepted that competition law is inherently intertwined with economics on grounds of having to define the relevant market, the efficacy and appropriateness of the current approach for determining the relevant share remains unclear (Whish, 2003). Furthermore, whilst the need to impose restrictions on competition can be justified through an economic analysis, the practical business realities cannot solely accurately be reliant on a rigid legal test particularly in light of the changing nature of the contemporary business model and consumer behavioral modes. As such, it is submitted that clear economic tests need to be incorporated into the legal approach to regulating competition within the EC. Whilst the current focus is on market share, which may address mergers specifically and be appropriate for particular industries, market power and dominance can be driven by consumer demand and be market efficient (Whish, 2003). To this end, it is reiterated that the current EU competition rules ignore the realities of business in the current approach to the application of Article 82. Moreover, whilst it is acknowledged that self regulation is by no means a complete panacea to the current deficiencies in EU competition law, whilst the Commission fails to adopt a pragmatic approach, it is submitted that bespoke self regulation would work further towards addressing the variances in relevant issues applicable to a particular market. Moreover, the focus of any self regulation should be to address access to a market as opposed to entrenched tests of market share, Wilberforce, Richard (1996). BIBLIOGRAPHY. Achrol, R (1991). 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