Access to Essential Innovation and Technology
Chapter 6: Market definition and abuse: new arguments for access
The cases discussed in Chapter 4 do not suggest that it can be abuse to refuse to license or to enforce IP when there is a straightforward infringement situation and there is no technical development, although there are some arguments to support intervention if standards are involved and, of interest in relation to Scenarios B and C, if IP owners decline to continue established supply arrangements. Could and should decision makers set aside the Volvo-Magill-IMS-Microsoft line and focus on delivering access in an individual case if this would be consistent with the Human Rights Emphasis? The Court of Justice is not bound by precedent1 and as has been seen in Chapter 4, some differences in approach have been taken. How much power can arise from the need to have regard to EU fundamental rights? A key issue is that it is EU fundamental rights, not Convention rights, which are relevant here, because of regard to article 102 TFEU. EU fundamental rights include Convention rights, and as has also been discussed in Chapter 3, article 102 and section 18 Competition Act (and other national competition legislation of member states) must be approached in the same way. If one was otherwise approaching the issue from the starting point of section 18 Competition Act, it is the interpretative obligations in sections 3 and 6 HRA which would be relevant. As seen in Chapter 3, these require interpretations which are ‘possible’ in the light of the legislation; there is no equivalent limiting provision regarding a court or EU institution making a decision which is consistent with EU fundamental rights.
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