A Comparative Study of US and EU Approaches
New Horizons in Competition Law and Economics series
Chapter 3: (Mis)use of regulatory procedures and IP
The focus of this chapter is on how the approaches to state-created distortions have influenced the application of antitrust law to unilateral conduct involving the acquisition or enforcement of IP rights in Europe and in the United States. As explained above, enforcement of valid IP rights is largely immune from antitrust scrutiny in the US and the foremost means to challenge anticompetitive unilateral use of IP rights is to allege that they have been improperly acquired or enforced.1 Yet, use of regulatory procedures to achieve exclusionary goals does not, as such, constitute a Sherman Act violation, with the narrow exception of obtaining a patent by fraud on the PTO.2 By contrast, EU antitrust enforcers challenge the use of regulatory procedures and legal enforcement of rights by dominant companies if it has an exclusionary objective. For example, in Compagnie Maritime Belge, the ECJ held that requesting a public authority to enforce an agreement giving exclusive rights to a private company was an Article 82 violation. On a number of occasions, the ECJ intervened in the way dominant companies exercised their exclusive rights. In General Motors3 and British Leyland,4 the Court held that these car producers, which had a legal monopoly to confirm that a car of their own make conformed to a previously approved type vehicle, abused their dominant position by charging excessive prices for issuing the certificate of conformity. In Télémarketing, a state-owned company granted exclusive rights in a particular market was found to have violated Article...
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