Free and Open Source Software Programs in European Union Merger Control

Abstract

This article proposes an analytical framework for assessing free and open source software programs in merger control procedures. When one of the merging parties owns the intellectual property rights associated with a Free and Open Source Software (FOSS) program, the competition authorities should first assess the ability and likelihood of the merged undertaking to remove this program from the market. To this end, the authority must evaluate whether the incentive of the merged undertaking to make the program involved in the transaction available post-merger under a FOSS licence will be reduced in comparison with the pre-merger situation. If, post-merger, it is still more profitable for the merged undertaking to provide the program under a FOSS licence than under a proprietary one, this program will then continue to exercise a significant competitive constraint in the market and no competitive concern will arise. By contrast, if the competition authority concludes that the FOSS program may disappear from the market, the authority must assess whether the competitive pressure this program wielded pre-merger will be taken up postmerger. In addition, this article discusses the possible role of FOSS licences in the design of merger remedies.