<p>It can be read from the EC treaty that the European Community shall have as its task to promote competition throughout the Community. Competition law exists to ensure competition in a free market, as competition is believed to bring such benefits as efficiency, low prices and innovation. Article 82 EC is meant to promote competition and is also meant to prevent anti-competitive behaviour. For Article 82 EC to be applicable several requisites must be met and one of them is that the undertaking must be in a dominant position. It is no easy task to establish dominance and there are no clear guidelines as how to do so.</p><p>In the United Brands case the ECJ provided a definition of dominance stating that dominance was economic strength enjoyed by an undertaking which enabled it to prevent effective competition and to behave to an appreciable extent independently. Subsequently, in Hoffman La Roche it was stated that some competition does not prevent the undertaking from being dominant.</p><p>One important element in the assessment of dominance is the market share data. However, mere numbers cannot determine dominance and other factors must be taken into account. It is the effect on the market the undertaking has that is of interest and not merely its market share. Such factors may strengthen or weaken the undertaking’s market position. Important to note is that there is no exhaustive list of factors the Community authorities could take into consideration when assessing dominance.</p><p>Through the years, there has been much criticism directed against the application of Article 82 EC and several commentators have argued that it is applied too arbitrary, and that there is no formalistic approach. The Commission has acknowledged the fact that the current case law under Article 82 EC is controversial and is currently working on a review of the provision. It is however doubtful whether the review will have much impact considering that the Commission is bound by existing case law, but possibly it could encourage a development in the future.</p>

It can be read from the EC treaty that the European Community shall have as its task to promote competition throughout the Community. Competition law exists to ensure competition in a free market, as competition is believed to bring such benefits as efficiency, low prices and innovation. Article 82 EC is meant to promote competition and is also meant to prevent anti-competitive behaviour. For Article 82 EC to be applicable several requisites must be met and one of them is that the undertaking must be in a dominant position. It is no easy task to establish dominance and there are no clear guidelines as how to do so. In the United Brands case the ECJ provided a definition of dominance stating that dominance was economic strength enjoyed by an undertaking which enabled it to prevent effective competition and to behave to an appreciable extent independently. Subsequently, in Hoffman La Roche it was stated that some competition does not prevent the undertaking from being dominant. One important element in the assessment of dominance is the market share data. However, mere numbers cannot determine dominance and other factors must be taken into account. It is the effect on the market the undertaking has that is of interest and not merely its market share. Such factors may strengthen or weaken the undertaking’s market position. Important to note is that there is no exhaustive list of factors the Community authorities could take into consideration when assessing dominance. Through the years, there has been much criticism directed against the application of Article 82 EC and several commentators have argued that it is applied too arbitrary, and that there is no formalistic approach. The Commission has acknowledged the fact that the current case law under Article 82 EC is controversial and is currently working on a review of the provision. It is however doubtful whether the review will have much impact considering that the Commission is bound by existing case law, but possibly it could encourage a development in the future.

<p>Competition law is an area which is going through changes over time, especially EC competition law in regard to the ongoing process of market integration. The definition of the relevant geographic market within EC competition law is of importance to define, both in case law and for undertakings and their businesses, as the law should be predictable. Before Article 82 of the EC Treaty, which prohibits abusive behaviour by undertakings, is applicable the relevant geographic market has to be defined. As is the case with the Merger Regulation, the relevant geographic market has to be defined to make an assessment of the undertakings’ activities. The definition of the geographic market is then used as a tool in the analysis of the assessment of competition and the effects of measures carried out by undertakings which restrain competition. Thus, the definition of the relevant geographic market is crucial for the purposes of Community competition law.</p><p>The definition of the relevant geographic market can be said to be an area where “the objective conditions of competition applying to the product in question must be the same for all traders” as established in United Brands. In Deutsche Bahn it was clarified that “... the definition of the geographical market does not require the objective conditions of competition between traders to be perfectly homogenous”. It is enough if they are similar, therefore areas in which the objective conditions of competition are different, are not considered to be a uniform market.</p><p>In the Commission Notice on the definition of relevant market for the purposes of Community competition law the Commission’s work to define the relevant geographic market is described as well as the evidence the Commission contemplates in its assessment. The substitutability test is relied on by the Commission. In case law from the European Court of Justice, the Court of First Instance, and the Commission, different factors are scrutinized to establish the relevant geographic market. Such factors are e.g., the undertakings’ activities, barriers to trade, and barriers to entry.</p><p>The significance of the evidence and the factors used in the definition of the relevant geographic market are debatable. The factors considered vary on a case to case basis and they need to differ to make a correct assessment of the relevant geographic market in every case within EC competition law.</p>

Recently, the potential conflict between intellectual property law and competition law within the European Union has become political as many of the Member States see the economic Holy Grail through the so called knowledge economy, an economy to which intellectual property is inextricable linked. The general rule in EC-law is that a holder of an intellectual property right is not obliged to license the use of that right to others. However, the law can intervene in certain specific circumstances, forcing an owner to license his right. Remedies of this kind are called compulsory licenses and have as their purpose to work as a safety valve, hindering the possible abuse of the exclusiveness following an IPR. An analysis of the EC Commission’s Microsoft Decision reveals that the Decision is inconsistent with settled case law from the European Court of Justice in a number of respects. The Decision is unclear and it will be difficult, close to impossible to predict how this approach will be applied in future cases. The Decision taken by the Commission in Microsoft states a new legal and economic policy for Europe, a paradigm applying a new standard on when a compulsory license could be ordered. The analysis show that this paradigm represent a considerable loosening of the circumstances when a remedy of a compulsory license could be ordered and, as a consequence, introduces a considerable degree of legal uncertainty. This uncertainty can have a substantial effect on innovations by market leaders around the whole world who market their products in Europe.

Competition law is an area which is going through changes over time, especially EC competition law in regard to the ongoing process of market integration. The definition of the relevant geographic market within EC competition law is of importance to define, both in case law and for undertakings and their businesses, as the law should be predictable. Before Article 82 of the EC Treaty, which prohibits abusive behaviour by undertakings, is applicable the relevant geographic market has to be defined. As is the case with the Merger Regulation, the relevant geographic market has to be defined to make an assessment of the undertakings’ activities. The definition of the geographic market is then used as a tool in the analysis of the assessment of competition and the effects of measures carried out by undertakings which restrain competition. Thus, the definition of the relevant geographic market is crucial for the purposes of Community competition law. The definition of the relevant geographic market can be said to be an area where “the objective conditions of competition applying to the product in question must be the same for all traders” as established in United Brands. In Deutsche Bahn it was clarified that “... the definition of the geographical market does not require the objective conditions of competition between traders to be perfectly homogenous”. It is enough if they are similar, therefore areas in which the objective conditions of competition are different, are not considered to be a uniform market. In the Commission Notice on the definition of relevant market for the purposes of Community competition law the Commission’s work to define the relevant geographic market is described as well as the evidence the Commission contemplates in its assessment. The substitutability test is relied on by the Commission. In case law from the European Court of Justice, the Court of First Instance, and the Commission, different factors are scrutinized to establish the relevant geographic market. Such factors are e.g., the undertakings’ activities, barriers to trade, and barriers to entry. The significance of the evidence and the factors used in the definition of the relevant geographic market are debatable. The factors considered vary on a case to case basis and they need to differ to make a correct assessment of the relevant geographic market in every case within EC competition law.

<p>Recently, the potential conflict between intellectual property law and competition law within the European Union has become political as many of the Member States see the economic Holy Grail through the so called knowledge economy, an economy to which intellectual property is inextricable linked.</p><p>The general rule in EC-law is that a holder of an intellectual property right is not obliged to license the use of that right to others. However, the law can intervene in certain specific circumstances, forcing an owner to license his right. Remedies of this kind are called compulsory licenses and have as their purpose to work as a safety valve, hindering the possible abuse of the exclusiveness following an IPR.</p><p>An analysis of the EC Commission’s Microsoft Decision reveals that the Decision is inconsistent with settled case law from the European Court of Justice in a number of respects. The Decision is unclear and it will be difficult, close to impossible to predict how this approach will be applied in future cases.</p><p>The Decision taken by the Commission in Microsoft states a new legal and economic policy for Europe, a paradigm applying a new standard on when a compulsory license could be ordered. The analysis show that this paradigm represent a considerable loosening of the circumstances when a remedy of a compulsory license could be ordered</p><p>and, as a consequence, introduces a considerable degree of legal uncertainty. This uncertainty can have a substantial effect on innovations by market leaders around the whole world who market their products in Europe.</p>