EU Competition Law and US Antitrust Law
Chapter 7: A policy for innovation analysis
7.1 PURPOSE AND PRINCIPLES All aspects of innovation competition analysis, such as the firms and R&D sources to include in a relevant market, the suspected potential anticompetitive effects, the modus operandi of analysing markets and practices and the difficult efficiency and remedy issues, are crucially dependent on the facts. However, the above analysis of legal prerequisites, doctrinal discussions, indicative conclusions from economic theory and empirical studies, and experiences from authority practices, should make it possible to outline some elements of a rational policy for innovation analysis. In light of the complexity of such analysis, the open-endedness of current legal concepts, and the need for predictability and legal security, an important feature is to identify limiting principles for the use of innovation market analysis. This will also summarize the conclusions and recommendations presented in Chapters 5 and 6. The overriding aim of such a policy would be to maintain a process for the development of new generations of products and technologies that is reasonably open for competition. With the innovation process exposed to (at least potential) competition, static product market concerns can be relatively played down. Since the relevant market is not an end in itself, but rather a way of identifying the non-trivial constraints on the exercise of market power, its delimitation must vary from case to case. Where innovation is an important feature of competition, a comprehensive analysis should include a structured assessment of trajectories, conditions and forecasts of that dimension. Regulatory frameworks for the assessment market transactions...
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