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Open Access 2024 | Open Access | Book

Sustainability Objectives in Competition and Intellectual Property Law

Editors: Pranvera Këllezi, Pierre Kobel, Bruce Kilpatrick

Book Series : LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Technik" , Springer Professional "Wirtschaft"

Table of Contents

About this book

This open access volume of LIDC contributions focuses on how competition and intellectual property laws incorporate sustainability objectives. Businesses are increasingly embracing sustainability objectives, driven by the international community. Although competition and intellectual property law are certainly not the only tools for addressing sustainability issues, they can play a role in moving toward a more sustainable society.
Sustainability has gained prominence in competition law in all jurisdictions covered in this volume. The contributions focus on classic questions such as whether sustainability agreements restrict competition and, if so, to what extent businesses can be exempted on efficiency grounds. The papers also raise a number of questions, in particular concerning the treatment of non-market efficiencies. The soft law and case law produced by competition authorities are examined, and the leadership role of some competition authorities in the field – from advocacy to policy papers and sustainability guidelines – is highlighted. The authors call for more individual guidance to provide enhanced transparency and clarity to industry, advisors and society at large on sustainability issues, with guidelines or sustainability-related block exemptions providing even greater legal certainty.
With regard to intellectual property, the contributions examine various important issues, such as the need for intellectual property rights to remain technology-neutral, ways to promote the use of sustainable technologies and incentives for licensing, and ways to promote the dissemination of sustainable technologies, including compulsory licensing, cross-licensing, open source or FRAND licensing, and replacing the destruction of counterfeit goods with recycling. The papers also discuss greenwashing and how it can be addressed through revisions to trademarks and related rights.

Frontmatter

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Sustainability Objectives in Competition Law

Frontmatter

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1. Sustainability and Competition Law: An International Report

Abstract

The interaction between sustainability and competition law has recently come onto the agenda of many competition agencies and international institutions. The International League of Competition Law (LIDC) has thus decided to explore the topic at the LIDC Congress on 20–22 October 2022 in Milano. This report provides an introduction into the debate and overview about the different national reports which were submitted from 11 countries (namely Austria, Belgium, Brazil, Czech Republic, France, Germany, Hungary, Italy, Malta, Switzerland, United Kingdom) and are contained in this book. The report first sets out the general legal framework on the interaction between competition law and sustainability in the different countries. The second part of the report addresses specific interactions between competition law and sustainability, exploring cases in the areas of co-operation, cartels, abuse/monopolisation, and mergers. It is subdivided into a section looking at ‘shield’, in other words, whether companies that take action to foster sustainability can rely on that fact before competition authorities, and the role of competition law as a ‘sword’ (cases where protecting competition was in turn expected to be beneficial to sustainability). The third part addresses ‘greenwashing’. The fourth part explores how agencies, beyond specific cases, have become active in the area, for example by setting out priorities, guidelines, working papers, and individual guidance and strengthening capacity. The final part briefly highlights some of the contributions that the reports have mentioned in other closely related areas of law, such as false advertising or unfair competition.

Julian Nowag

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2. Sustainability and Competition Law in Austria

Abstract

Sustainability and environmental protection are the pressing questions of our time. Austrian competition law keeps pace with these issues and addresses them under the light of both antitrust and unfair competition law. Suitably, the amendment of the Austrian Cartel Act in 2021 took account of environmentally sustainable and carbon-neutral economies within its exemption provision, which led to a remarkable novelty in antitrust law. Beyond that, Austrian case law delt with environmental advertising in the light of unfair competition law and established a strict standard for the assessment of advertisements containing catchwords such as "organic" or "climate neutral".

Adrian Kubat, Adnan Tokić

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3. Sustainability and Competition Law in Belgium

Abstract

So far, sustainability concerns have not influenced the enforcement of competition law by the Belgian Competition Authority or the national courts. However, with increased attention to this topic, this may change in the future. The BCA has also stated that it will pay increased attention to the relationship between competition law and sustainability, and that it is open to providing guidance on sustainability initiatives.

Jan Blockx

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4. Sustainability and Competition Law in Brazil

Abstract

The concept of sustainability admits different definitions. One of the most known is the one given by the UN as “meeting the needs of the present without compromising the ability of future generations to meet their own needs.” In the following answers, sustainability is understood as preventing the depletion of natural or physical resources so that they will remain available for society for the long term. In business and policy contexts, the concept of sustainability refers to the idea of planned and responsible development regarding the use of natural resources in economic activities to avoid or reduce environmental risks and allow the continuity of human life.

José Mauro Decoussau Machado

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5. Sustainability and Competition Law in Czech Republic

Abstract

The Czech Republic is a member of the United Nations (UN), the World Trade Organization (WTO), the Organisation for Economic Co-operation and Development (OECD) as well as the European Union (EU). The Czech law shares the continental law tradition and reflects the international and regional commitments and obligations of the Czech Republic, including the call for sustainable development. Namely, the concept of sustainability projected on the responsibility of all stakeholders, including businesses—see corporate social responsibility (CSR)—is recognized in the Czech Republic, and its application in various spheres is expected. Indeed, sustainability rests on three pillars—economic, environmental and social—and all three need to be met while their objectives should be advanced simultaneously, if not synergistically, i.e. there should not be trade-offs. At the same time, it must be emphasized that the Czech Republic is not a pro-sustainability force par excellence and rather follows than leads these trends in the EU. These follow-ups are sometimes more and sometimes less enthusiastic, generally on time, but occasionally a national resistance can be identified.

Radka MacGregor Pelikánová

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6. Sustainability and Competition Law: A French Perspective

Abstract

The word “sustainability” is absent from the legislative and regulatory provisions composing the French competition law. Therefore, it is not possible to say what this concept exactly means legally speaking.

Michaël Cousin, Alexandre Marescaux, Lauren Mechri, Guillaume Melot

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7. Sustainability and Competition Law in Germany

Abstract

For some time now, there has been a debate in German competition law about how and to what extent sustainability concerns can and should play a role in cartel, abuse of dominance and merger proceedings. Most academics and practitioners in Germany share the view that sustainability and competition law do not usually collide. Nevertheless, conflicts can arise in situations of market failure. The paper first analyses the legal provisions relevant for dealing with these in competition law matters, in particular constitutional law, European law and the German Climate Protection Act. While German competition law used to contain sustainability related exemptions, these have gradually been abolished. In addition, the paper shows that compared with older cases, the Federal Cartel Office has recently taken a more restrictive view on the extent to which sustainability issues can be considered when applying competition law. The paper then examines the case law of German authorities and courts to shed light on how competition and sustainability objectives can be reconciled, focusing on sustainability as both a sword and a shield. Finally, the paper summarizes reform proposals for the next amendment to the German Act against Restraints of Competition which has been announced to focus, inter alia, on sustainability.

Eckart Bueren, Jennifer Crowder

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8. Sustainability and Competition Law in Hungary

Abstract

The concept of sustainable yield—serving as the origin of the concept of sustainable development – was introduced in response to dwindling forest resources in the seventeenth and eighteenth centuries. This suggests that the concept of sustainability is inherently economical, not alien from competition law, but having benefits going beyond simple economic gains.

András M. Horváth

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9. Sustainability and Competition Law in Italy

Abstract

Before outlining the sustainability initiatives with a competitive impact that have been undertaken at the Italian level by the various competent authorities, it is necessary to briefly clarify some preliminary notions concerning the concept of sustainability and ecological transitions, the role that these issues have in the framework of competition law, and the role played by the Italian Antitrust Authority (IAA) in the context of ecological transition and in explaining how in concrete terms sustainability issues intersect with antitrust issues. Finally, some specific cases related to sustainability issues investigated by the IAA will be mentioned.

Elisa Teti

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10. Sustainability and Competition Law in Malta

Abstract

The concept of “sustainability” is not defined under Maltese law, but there are a number of acts of parliaments and subsidiary legislation for different sectors that use the term “sustainability”.

Clement Mifsud-Bonnici

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11. Sustainability and Competition Law in Switzerland

Abstract

This chapter examines the intersection between sustainable development and Swiss competition law. It considers the impact of sustainable development initiatives on competition and their justification on environmental grounds, in particular under Article 5(2) of the Swiss Cartel Act. It describes Switzerland's commitment to sustainable development in line with the global sustainable development goals. Although Swiss competition law does not contain explicit provisions on sustainable development, it is guided by constitutional principles. The chapter analyses specific cases, highlighting the interaction between sustainability and the application of competition law, whether as a defensive "shield" or as a challenging "sword" against anti-competitive behaviour in the context of sustainability initiatives. While there has been a limited focus on sustainability cases in Swiss competition law, recent legal developments in the areas of public procurement and sustainable finance demonstrate the growing importance that Switzerland attaches to sustainability objectives.

Johana Cau, Alexandra Telychko

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12. Sustainability and Competition Law in the United Kingdom

Abstract

The interaction of competition law and sustainability has been a live question for the UK government and the UK’s Competition and Markets Authority (‘CMA’) in recent times. With the hosting of COP26 in Glasgow in 2021, the fight against climate change concerns has benefitted from renewed political will. PLease note this will follow by email on 12.10.23

Simon Holmes, Nicole Kar, Lucinda Cunningham

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Sustainability Objectives in Intellectual Property Law

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13. Sustainability and Intellectual Property in Austria

Abstract

Intangible assets such as patents, trademarks, designs and data are becoming increasingly important in today’s knowledge economy. According to the EU Commission’s Action Plan on Intellectual Property to strengthen EU’s economic resilience and recovery (‘IP Action Plan’) published on 25 November 2020, IP-intensive industries account for 45% of GDP and 93% of EU exports, while the added value of IP is growing across most European industrial ecosystems. Globally, IP filings are on the rise, as intangible assets become crucial in the global race for technological leadership. It goes without saying that the success of sustainable economies depends to a large extent on new and innovative solutions. Intellectual property rights, therefore, undoubtedly play an increasingly significant role in sustainable and green businesses.

Georg Kresbach

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14. Sustainability and Intellectual Property in Brazil

Abstract

Intellectual property rights, in short, are a set of rules that aim to protect certain types of intangible assets, with specific and—more traditional—objective of fostering innovation.

Lucas Bernardo Antoniazzi

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15. Sustainability and Intellectual Property in Germany

Abstract

Intellectual property rights offer diverse opportunities to promote sustainability. However, they are currently not being used to their full potential. This section provides an overview of the current state of opportunities in Germany and identifies opportunities for further improvements.

Thomas Hoeren, Tabea Ansorge, Oliver Lampe

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16. Sustainability and Intellectual Property in Hungary

Abstract

Generally, IP rights as legal instruments intend to encourage and foster innovation and creativity, as well as to safeguard values worth preserving. IP rights as intangible assets facilitate social and economic growth and are essential to fair competition. While these instruments grant exclusive rights, they are likewise subject to a number of limitations aimed at achieving the right balance between public interest and the interests of the rightsholders.

Bálint Halász, Ádám Liber, Dániel Arányi, Fruzsina Nagy, Olivér Németh

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17. Sustainability and Intellectual Property in Italy

Abstract

This chapter explores the role of Intellectual Property in sustainability from a comparative perspective, also in the light of the new challenges posed by the Green transition providing proposals and possible strategies to stimulate the development of the circular economy.

Marina Cristofori

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18. Sustainability and Intellectual Property in Malta

Abstract

In Malta, intellectual property (hereinafter referred to as ‘IP’) is regulated by various laws both at EU level—either through transposition or else by virtue of their direct applicability—as well as locally. For the purposes of responding to the questionnaire, we have focussed on the local legislative framework and local landscape (save where we have felt it necessary to expand our response to include the EU). The ‘main’ laws regulating IP in Malta are the Copyright Act (Chapter 415 of the Laws of Malta), the Trademarks Act (Chapter 416 of the Laws of Malta), the Patents and Designs Act (Chapter 417 of the Laws of Malta), the Intellectual Property Rights (cross-border measures) Act (Chapter 414 of the Laws of Malta), the Enforcement of Intellectual Property Rights (Regulation) Act (Chapter 488 of the Laws of Malta), the Trade Secrets Act (Chapter 589 of the Laws of Malta) and the Commercial Code (Chapter 13 of the Laws of Malta). Additionally, Malta is also a party to various international treaties, conventions and agreements including the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention, the Patent Cooperation Treaty, the European Patent Convention and the Unified Patent Court and Regulation.

Philip Mifsud, Sasha Muscat

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19. Sustainability and Intellectual Property in Sweden

Abstract

Intellectual property (IP) is considered to be of major importance in the modern economy and is, as a rule, a prerequisite for the dynamic development of culture, technology, and economic prosperity. It is not clear what role IP has in the pressing global issue of sustainability and the green transition and if it, for that matter, even should have a certain role. This chapter briefly addresses this matter from a Swedish IP perspective.

Martin Zeitlin

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20. Sustainability and Intellectual Property in Switzerland

Abstract

With respect to sustainable development, Intellectual Property can represent either a critical incentive or a hindrance to innovation and creativity. However, the purpose of this report is to go beyond the positions of principle and to underline the current and prospective Intellectual Property protection and uses that would create positive impact to achieve sustainability. The role of Intellectual Property in sustainable development shall therefore be global: tackling challenges in relation to biodiversity, traditional knowledge, climate change, transfer of clean technologies, agrobiotechnology and food security shall be the focus. This contribution aims at discussing the role of Intellectual Property regulations and/or other measures taken or proposed in Switzerland to encourage sustainable enterprises and innovations. We will provide an overview of the different Intellectual Property rights protected under Swiss law and their respective/current role in sustainability (Sect. 20.2) as well as of the measures and initiatives leading to cooperation, transfer of technology or knowledge offered in Switzerland (Sect. 20.3). Overall, if there is still room for improvement, Switzerland and the Swiss Intellectual Property Office have undertaken effective steps to implement and contribute to the realisation of the sustainable development goals, especially by encouraging the dissemination of innovation and knowledge.

Eugenia Huguenin-Elie

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21. Sustainability and Intellectual Property in United Kingdom

Abstract

Intellectual property (‘IP’) currently plays a strong role in sustainability, although its relationship with, and impact on, environmental, social and economic factors could be strengthened further. For example, at least six of the United Nation’s Sustainable Development Goals, namely zero hunger, clean water and sanitation, affordable and clean energy, industry, innovation and infrastructure, sustainable cities and communities and responsible consumption and production, overlap directly with most ‘definitions’ of sustainability and will require a range of new technologies to implement. Technological innovation geared towards environmental or sustainable factors (which could also loosely be referred to as ‘green’ technology) will therefore be pivotal in achieving the UN’s goals.

Ben Hitchens, Caitlin Heard, Joel Vertes

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Title: Sustainability Objectives in Competition and Intellectual Property Law
Editors: Pranvera Këllezi
Pierre Kobel
Bruce Kilpatrick
Publisher: Springer Nature Switzerland
Electronic ISBN: 978-3-031-44869-0
Print ISBN: 978-3-031-44868-3
DOI: https://doi.org/10.1007/978-3-031-44869-0