Restrictions on Innovation in EU Competition Law

41 European Law Review 2016, Forthcoming

LSE Legal Studies Working Paper 22/2015

27 Pages Posted: 17 Dec 2015  

Pablo Ibáñez Colomo

London School of Economics - Law Department

Date Written: December 4, 2015

Abstract

This paper discusses, in light of the practice of the European Commission, the different ways in which innovation considerations can be introduced in EU competition law. In some cases, such considerations have played an indirect role in the analysis. These are instances in which harm to innovation has been presumed or inferred by proxy from the effects of a practice on the competitive process (for instance, the foreclosure of a rival or the creation of a near monopoly). It is difficult to see anything controversial, or parameter-specific, in these cases. They reflect the approach to contemporary enforcement, which revolves essentially around the analysis of markets and does not require direct evidence of the impact of a practice on, inter alia, prices, output or product quality. Innovation-related arguments may also be introduced as an alternative to the orthodox approach to enforcement. For instance, they may be introduced in lieu of foreclosure analysis in a case where intervention requires evidence of an exclusionary effect. Instead of showing that the practice would lead to foreclosure, the authority or claimant would claim that the practice reduces the rate of innovation. It is submitted that there is no room in EU competition law for the direct introduction of innovation considerations.

Suggested Citation

Ibáñez Colomo, Pablo, Restrictions on Innovation in EU Competition Law (December 4, 2015). 41 European Law Review 2016, Forthcoming; LSE Legal Studies Working Paper 22/2015. Available at SSRN: https://ssrn.com/abstract=2699395

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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