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Über dieses Buch

This book provides an unparalleled comparative analysis of two "hot topics" in the field of antitrust and unfair competition laws with regard to a number of key countries.

The first part of the book examines the consistency and compatibility of transactional resolutions of antitrust proceedings (such as settlement procedures, leniency programmes and commitments) with due process and the fundamental rights of the parties. This is a particularly important topic, given the widespread adoption of these procedures by anti-trust authorities worldwide. The individual chapters consider how the leniency, settlement and commitments procedures have developed across a range of jurisdictions, and discuss the extent to which checks and balances have been applied in those national procedures in order to safeguard the fundamental rights of the parties involved. A detailed international report identifies general trends and highlights the differences between and most interesting features of national regulations.

The second part of the book gathers contributions from various jurisdictions on the unfair competition-related question of the online exhaustion of IP rights. As commerce is increasingly moving online, the respective chapters consider the extent to which exhaustion and similar concepts have adapted to these rapid changes. The comprehensive and insightful international report brings together these reflections by comparing various national positions.

The book also includes the resolutions passed by the General Assembly of the LIDC following a debate on each of these topics, which include proposed solutions and recommendations. The international League of Competition Law (LIDC) is a long-standing international association that focuses on the interface between competition law and intellectual property law, including unfair competition issues.



Due Process in Antitrust Transactional Mechanisms


1. International Report

Transactional resolutions are becoming an increasingly important part of antitrust proceedings. Contributions from 16 jurisdictions confirm such a trend.
Pranvera Këllezi

2. Australia

The Australian competition law regime is primarily governed by the Competition and Consumer Act 2010 (Cth) (the “CCA”) and is based on both private and public enforcement. However, Australian competition law is primarily enforced and regulated publicly by the Australian Competition and Consumer Commission (the “ACCC”). The ACCC has investigative and information-gathering powers under Part XID of the CCA. It resolves matters either by administratively encouraging consultation or negotiation to settle disputes or via litigation. Nevertheless, only the court has the power to declare whether particular conduct contravenes the CCA and make findings of liability. The ACCC is empowered to institute proceedings in the court for the declaration of an infringement of the CCA and for the recovery of a pecuniary penalty on behalf of the Commonwealth. The ACCC may also apply for injunctions, damages and a range of orders.
Barbora Jedličková, Julie Clarke, Sitesh Bhojani

3. Austria

In the following, the term “transactional resolutions” covers settlement processes, leniency, transactions, commitments, and other types of transactional resolution.
Gerhard Fussenegger

4. Belgium

The entry into force of Book IV of the Code of Economic Law on 6 September 2013 introduced several fundamental changes to Belgian competition law.
Jenna Auwerx

5. Brazil

Transactional institutions for administrative and criminal investigations have been in place in Brazil, in a modern form, since the early 1990s. Ever since, the use of such instruments by the authorities (e.g., public prosecutors, Government, agencies) has grown and became regarded as a valuable tool for law enforcement. Nonetheless, because of the country’s legal tradition, many practitioners still see transactional institutions as deviations from the ‘public interest’ and the ‘rule of law’, although this opinion is becoming much less common than it was in the past.
José C. M. Berardo, Bruno B. Becker

6. Czech Republic

Transactional resolutions of competition proceedings before the Czech Office for Protection of Competition (in Czech: Úřad pro ochranu hospodářské soutěže, hereinafter the “Office”) are quite common. The introduction of transactional institutions has had quite an interesting development in the Czech jurisdiction. After the Velvet Revolution with the advent of new competition law in the Czech Republic (at that time still part of the Czech and Slovak Federal Republic) which was enacted as Act No. 63/1991 Coll., on the protection of competition, no transactional resolutions were contemplated in the proceedings before the Office (or the respective ministry which fulfilled its role at that time). Gradually, however, the Office found its way (despite the lack of statutory provisions to that effect) to the application of some sort of transactional resolutions in its decision-making practice. Throughout the application of Act No. 63/1991 Coll., there were no formal procedures that might have led to a transactional resolution of a case. In practice, however, the Office used from time to time a form of “competition advocacy” whereby it advised (rather informally) concerned parties of objections it had towards certain practices and asked them to change these practices. If they did so, the Office either did not commence proceedings or in the commenced proceedings refrained from imposing any penalty or imposed only a ‘symbolic’ or nominal penalty. In addition, in the so-called exemption proceedings regarding potentially restrictive agreements the Office imposed (after rather informal negotiations with the parties) certain conditions and/or commitments to be complied with in order for the respective agreement to benefit from the issued individual exemption. There were, however, neither settlements nor leniency proceedings at that time. There were no commitment decisions within the control of concentration procedures either.
Jiří Kindl, Michal Petr

7. France

Ending a case by an agreement is a very old idea in France. The French civil code states since 1804 that “Anyone can compromise as regards rights over which they have an unrestricted power of disposition” (art. 2059, civil code). This agreement is called “transaction.”
David Bosco

8. Germany

The main competition law provisions in Germany, that is, the prohibition of cartels and abusive practices as well as merger control, can be found in the Gesetz gegen Wettbewerbsbeschränkungen (Act against Restraints of Competition, the “GWB”). Since its entry into force in 1958, the GWB has undergone several reforms; its main substantive provisions are now largely in line with Articles 101 and 102 TFEU.
Eckart Bueren

9. Hungary

Transactional resolutions in Hungary are not limited to competition law proceedings, but they are, although in another form, present in administrative and criminal proceedings.
Anikó Keller

10. Italy

Any analysis of the development of transactional institutions in the Italian legal system, as well as any investigation into the nature and functions of such institutions, inevitably depends on the assessment of the entities involved in any such transactions. Such exercise therefore requires a consideration of the various frameworks for negotiation, and their manifold possible outcomes, within the wider context of public administration.
Alberto Camusso

11. Poland

Under Polish competition law, there are currently several transactional institutions that allow parties to cooperate with the competition authority in order to avoid or at least mitigate the amount of a fine to be imposed by the competition authority. Such “plea bargain” type solutions encompass leniency in cases regarding anticompetitive agreements and commitments applicable in cases of both alleged agreements restricting competition and alleged abuses of dominant position. Finally, there are also commitment decisions in merger procedure available.
Aleksander Stawicki, Bartosz Turno, Tomasz Feliszewski, Krzysztof Kanton, Katarzyna Karasiewicz

12. Serbia

Transactional proceedings are not widely used in the Serbian legal system. Other than under competition regulations, which will be analyzed in detail in this Report, they are only recognized in criminal proceedings, where the mechanism of a plea bargain has been introduced only recently. Namely, as of 2012, the Criminal Code has recognized the “agreement with prosecutor on admittance of guilt” and further sets forth the conditions required for its application (only for certain types of criminal offenses, etc.). Such agreement has to be approved by the sitting judge. Unfortunately, a plea bargain is still not commonly used in practice. To the best of our knowledge, only around 50 cases have ended in a plea bargain since its introduction into the legal system.
Darija Ognjenovic

13. Spain

The Spanish Competition Act regulates cartels and other antitrust matters. The Defence of Competition Regulation (CR) implements specific sections of the Competition Act, including procedural questions such as sanction proceedings and the Spanish Leniency Programme. Furthermore, the Spanish Competition Authority has issued guidelines on termination of infringement proceedings by commitments and on the leniency programme in order to establish clear and secure proceedings for undertakings and interested parties. As in other European Member States, Spanish Competition Authorities are also entitled to apply Articles 101 and 102 TFEU, where applicable.
Julia Suderow, Amaya Angulo Garzaro

14. Sweden

Ever since Sweden decided to join forces with the other EU Member States and become part of the EU, Swedish competition legislation has been closely modelled on its EU equivalent. Last year, Sweden celebrated the 20th anniversary of its modern competition law regime. The competition law rules are currently contained in the Swedish Competition Act (hereinafter “the Act”), which entered into force on 1 November 2008. However, the substantive antitrust provisions have been the same since 1993 and mirror Articles 101 and 102 TFEU.
Helene Andersson

15. Switzerland

Transactional resolutions in Switzerland are part of a dynamic field characterized by constant conflicts and compromises—a constant balancing act between authorities’ possible actions in accordance with administrative law, benefits in the areas of fact-finding, and the efficient handling of actual or potential proceedings.
Daniel Emch, David Neuenschwander, Alisa Burkhard

16. United Kingdom

In April 2014, a number of significant reforms to the UK competition law regime were introduced. These were given effect through the Enterprise and Regulatory Reform Act 2013 (ERRA13), which received Royal Assent on 25 April 2013.
Marc Israel

17. United States of America

The United States has a federalist system in which the powers of our federal or national government, though quite broad, are enumerated, defined, and in important ways limited. The powers of the governments of the American States, which have a residual sovereign status, are numerous and indefinite, a point that shows up most strongly in the fact that they, unlike the federal government, possess a so-called general police power to legislate on any subject. Accordingly, not only can the federal government enforce federal antitrust law, but also the American States can and do enforce both federal antitrust law as well as their own state antitrust law.
Emilio E. Varanini

Online Exhaustion of IP Rights


18. International Report

The legitimate holder of an industrial property right loses his absolute right with the first sale (principle of exhaustion of IP rights). The first sale made by the holder of an industrial property right, or by a legitimate licensee, has as a consequence that that good may freely circulate, and the legitimate IP holder may not oppose the successive acts of reselling.
Vincenzo Franceschelli

19. Austria

Depending on the affected IP right, e.g. copyright, rights in trademarks, designs, patents, or plant variety, the corresponding Austrian Act defines the “principle of exhaustion” in a slightly different way. The Austrian courts have not developed a “general principle of exhaustion all over the field of IP rights” but have applied the “principle of exhaustion” according to the exact wording of the corresponding Act.
Max W. Mosing

20. Belgium

In the traditional “brick-and-mortar” industry, the principle of exhaustion is well established by case law, as well as by legislation in both European Union and Belgian laws. However, with new marketing and business models emerging and goods and services being increasingly distributed online (in the broadest sense), the traditional boundaries of the principle of exhaustion are put into question. As a consequence, the question “To what extent does the principle of exhaustion of IP rights apply to the on-line industry?” (the “Question”), which this report discusses, is of great importance as it determines the extent to which a user is free to use and to distribute onwards the “goods” that he/she purchased online.
Jan Clinck, Benjamin Docquir

21. Brazil

Brazilian law currently establishes a principle of national exhaustion of IP rights. Basically, the owner of an IP incorporated into a product cannot impede its use if the product was introduced in the Brazilian market by the owner himself or by someone authorized by him.
Paulo Parente Marques Mendes

22. Bulgaria

The approach undertaken by the Bulgarian legislator regarding IP rights is that each type of IP is regulated in a separate statutory act. Therefore, there is no single definition of exhaustion of IP rights, and depending on the type of IP, the rules of exhaustion may vary.
Teodora V. Tsenova

23. Czech Republic

At present, a question arises as to whether the state of the law is keeping up with the pace of technological developments and whether it is necessary to amend national laws and European law or not. The Czech Republic is no exception. Currently, the principle of exhaustion of IP rights on digital media is subject to public discussion. A definitive answer can be only provided by a decision of the Supreme Court of the Czech Republic, which has yet to receive a case that would address this legal problem. As the Czech Republic is part of the European Union, the interpretation of the national laws has to be also compliant with the EU directives and the interpretation of the ECJ/CJEU of these directives. This paper mainly focuses on the issue of copyright exhaustion, as copyright/author’s rights are the most frequent rights that apply to digital media and online industry, and also on the exhaustion of trademark rights.
Karin Pomaizlova

24. France

A genuine reflection of the balance between free movement of goods (for which the Court of Justice of the European Union guarantees respect) and the monopoly of exploitation granted to the holder of an intellectual property right finds that the exhaustion of rights is a principle in constant mutation.
Mary-Claude Mitchell, Jean-Louis Fourgoux, Tiphaine Delannoy, Rachel Nakache

25. Germany

In the German legal system, the principle of exhaustion of intellectual property rights is either particularly stated or at least recognised as a leading principle; in this regard, sections 17(2), 69c(3) second sentence of the Copyright Act; section 24 Trademark Act; section 48 Design Act shall be mentioned. In contrast, the German Patent Act lacks an explicit legal basis for the principle of exhaustion; however, its existence is doubted by no means. The German Supreme Court (BGH) has repeatedly acknowledged the exhaustion principle as a precautionary principle for the entire IP law.
Thomas Hoeren

26. Hungary

In recent years, online industry has grown and developed (and is continuing to grow and develop) at an extraordinary rate. According to Eurostat, in the EU-28, businesses reported that 14 % of their total turnover came from e-commerce during 2012, consisting of orders via a website or via EDI-type messages. In fact e-commerce enables businesses to establish their presence on the market at a national level and also to extend their economic activities beyond national borders.
Zsófia Lendvai

27. Italy

Article 5 of the Italian Intellectual Property Code deals with the exhaustion of intellectual property rights (trademarks, patents and designs), whilst with regard to copyright works specific rules are provided by articles 16.2 and 17 of the Italian Copyright Act, respectively on the economic right of communication to the public and distribution.
Francesca La Rocca

28. Switzerland

The online distribution of goods is taking off around the globe and in Switzerland. This is true with respect to tangible products (such as sport shoes on eBay) and services (like flights at Increasingly also, people buy software and other goods such as music, videos, and books in purely digital form, i.e. without transfer of any tangible medium (sometimes also referred to as material medium). With respect to software, for instance, CDs and DVDs have been largely replaced by downloads from the Internet. In 2011, the amount spent by Swiss consumers in relation to e-commerce reached almost 5 billion Swiss francs; this shows a substantial increase over the past years, and this trend is expected to continue in the future.
Adrien Alberini

29. United Kingdom

In this section, we discuss how exhaustion of IP rights is addressed by English law, both in the limited case law and in legislation, and how EU principles came to replace similar English concepts emanating from pre-EU case law. We consider the types of IP right which are subject to exhaustion and the few cases which have discussed the limits of the exhaustion principle.
Bill Batchelor, Luca Montani
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