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Published online by Cambridge University Press: 17 December 2022
A.1. BASE CASE
Frank heads a major beer producing company. In the 1970s, he developed a computer programme which analyses regional patterns of beer distribution and beer consumption. Since then, he has constantly refined the programme and has freely distributed the programme to his traders, trade associations and market analysts. Over time, the programme became the standard instrument to analyse the beer market. Without using it, one cannot be active on this market. Therefore Erica, a former trader of Frank’s products and now director of a major competitor of Frank, started to model her own distribution system on Frank’s system. Does Frank have a right to an injunction arguing that the computer programme is his?
A.2. EDITORIAL NOTE: THE EUROPEAN FRAMEWORK
The base case is modelled on the famous CJEU cases IMS Health and Magill (later in line: Huawei) but EU law does not apply to the designed case (no transborder/Community element). The research interest is directed towards national deviations from these cases (under the condition that a national antitrust control exists). Three aspects of European law are important for the national case analyses:
1. European legislation provides for copyright protection of computer programmes. Due to the member states’ duty to transform directives into national law, most national statutes will have a corresponding provision.
2. The relationship between European and national competition law is stipulated by Regulation (EC) No. 1/2003. 5 Its Article 3(1) emphasises that national competition authorities, which apply national competition law to any abuse prohibited by Article 102 TFEU (former Art. 82 EC), must also apply Article 102 TFEU. National and European law are applied in parallel. Furthermore, Article 3(2) Regulation (EC) No. 1/2003 states that member states may adopt and apply stricter national law for prohibiting and sanctioning unilateral conduct engaged in by undertakings. Thus, national rules may qualify a certain conduct by a dominant undertaking as abuse, even if European law does not.
3. Early on, the European Court of Justice based restrictions on IP rights on Article 102 TFEU and reversed the former doctrine that IP law takes precedence over competition law, thus acknowledging IP as an important factor for the analysis of market dominance.
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