Carcterización de la Población
13.3 REGISTRO INDIVIDUAL DE PRESTACIÓN DE SERVICIOS DE SALUD (RIPS)
Previous analysis has demonstrated that, compared to the US antitrust law, it is the EU competition law that has influenced most aspects of the AML, including the setting of multiple competition law objectives, and most provisions in the three competition law realms of anticompetitive agreements, abuse of dominance and merger review. Based on the comprehensive AML, China has established a two-layer, three-pronged enforcement regime. This EU-like administrative-oriented enforcement regime has adopted sets of procedural and substantial rules to implement the law. However, the vagueness within the competition law legislations and the enforcement authorities’ limited experience in practice give rise to an unavoidable result that many competition law issues are unsolved in China, such as the balancing between economic considerations and industrial policy considerations in a given case. Moreover, the current problems within the administrative system (including inter-authority and intra-authority problems) and the judicial system in implementing the AML, and the increasingly close EU-China relationship with respect to competition law, lead to the conclusion that it is highly likely that the EU successful experience, inter alia in certain complicated competition issues such as those at the intersection of competition law and IPR, could provide further guidance for China. Thus it is quite natural to speculate whether and to what extent the pattern adopted by the EU Commission and the EU courts to tackle refusal to license IPR, currently a fairly novel issue for China, could influence and contribute to China’s future practice in this particular respect.
Administrator of DG Competition at http://ec.europa.eu/competition/speeches/text/sp2009_10_en.pdf, last visited on 20 January 2014; EU-China Conference on the Interface between Competition and Intellectual Property Law, Dalian, 10-11 June 2010, materials of the conference could be accessed at
http://www.ipr2.org/index.php?view=article&id=1204%3Aeu-china-conference-on-the-interface-between-competi tion-and-intellectual-property-law&option=com_content&Itemid=248, last visited on 20 January 2014; EU-China
Seminar on Innovation and Competition in the IT Sector, Beijing, 26 June 2012,
http://www.euchinacomp.org/index.php/competition-weeks?id=241, last visited on 20 January 2014.
345 Qianlan Wu, ‘EU-China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law’
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CHAPTER Ⅱ EU competition law on refusal to license
1. Introduction
The creation of Article 102 TFEU aims to regulate the conducts of dominant undertakings in relevant markets. Its purpose is to prevent the effective competition process in the internal market of European Union (‘EU’) from being distorted by dominant undertakings’ abusive conducts, which could be capable of driving out current competitors or establishing high entry barrier for potential entrants. However, Article 102 TFEU does not prohibit the possession of a dominant position which is legitimately acquired by “superior efficiency or innovativeness”.1
In the EU it is apparently recognized by the laws of the Member States that an undertaking, even holding a dominant position on a relevant market, in most cases is free to decide its business strategy and to choose its trading partner.2 Accordingly, with respect to intellectual
property right (‘IPR’), the EU courts have in a number of cases confirmed that it is at the discretion of the right holder to license, or otherwise to refuse to license, its IPR to a third party, including its competitors.3 The purpose of Article 102 TFEU, As Advocate General Jacobs
stated in his opinion in Bronner, “is to prevent distortions of competition – and in particular to safeguard the interests of consumers – rather than to protect the position of particular
competitors”4. Only under some recognized exceptional circumstances, which have been
developed by the EU courts, shall the dominant undertakings be ordered to license their IPRs to new customers or continue their licensing relations with current customers. 5 On this occasion,
the essential IPR owned by the dominant undertakings shall, subject to the compulsory licensing, be accessed by the competitors. Otherwise, an abusive refusal to license IPR would lead to limiting competitors’ production, or impeding technical development of certain
1 Steven Anderman and Hedvig Schmidt, EU Competition Law and Intellectual Property Rights (second edition,
Oxford University Press, 2011), p33.
2 SeeJudgment in Oscar Bronner, C-7/97, ECLI:EU:C:1998:264, opinion of Mr Advocate General Jacobs delivered
on 28 May 1998, Para 53 and 56.
3 E.g. Judgment in Volvo, 238/87, ECLI:EU:C:1988:477, Para 7-8; Judgment in Magill, C-241/91 P and C-242/91 P,
ECLI:EU:C:1995:98, Para. 49; Judgment in IMS Health, C-418/01, ECLI: EU: C: 2004: 257, Para. 34; Judgment of 17 September 2007, Microsoft v Commission, T-201/04, ECR, ECLI: EU: T: 2007: 289, Para 331.
4 Judgment in Oscar Bronner ECLI:EU:C:1998:264, Opinion of Advocate General Jacobs, Para 58. (emphasis
added)
5 Judgment in Volvo ECLI:EU:C:1988:477, Para 9; Judgment in Magill ECLI:EU:C:1995:98, Para 50; Judgment in IMS Health ECLI: EU: C: 2004: 257, Para 35; Judgment in Microsoft v Commission, ECLI: EU: T: 2007: 289, Para
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neighbouring market to the prejudice of consumers within the meaning of Article 102 TFEU. The list of abusive practices provided by Article 102 TFEU is not exhaustive and the practices mentioned there are merely examples of abuse os a dominant position.6 It is therefore
controversial that under which conditions an order to license may be applied. This chapter and the next chapter will investigate the EU approach on refusal to license by analyzing inter alia the analytical framework respectively adopted by the EU Commission and EU Courts. Apart from the substantial criteria established by the case law in right owner’s behaviour of refusal to license, a detailed analysis of related EU competition law principles and concepts is necessary in order to understand the EU model as an integrated system. This not only includes those issues prior to assessment of the allegedly abusive practice, such as defining the relevant market and assessing the existence of dominant position. The latter could be quite complicated and controversial in some ‘dynamically competitive industries’, such as information technology (‘IT’) industry, where a high market share may not indicate strong market power. The analysis also investigates other procedural issues that should be considered during or after the Commission’s investigation, such as the choice of Article 7 and Article 9 of Regulation 1/2003, and the applicability of behavioural and structural remedies in refusal to license situation.