Intellectual Property Rights, Interoperability and Compulsory Licensing: Merits and Limits of the European approach

Abstract

The Essential Facilities Doctrine, albeit an American case-law creation, is also implemented in the European Union. While, since Trinko (2004), the US Supreme Court seems to challenge its implementation, European antitrust authorities tend to extend this doctrine to intangible assets. Focusing on European case-law, we observe several differences between American and European competition policies. This article highlights these dissimilarities - which are going much further than the sole implementation of the EFD - and underlines both the principles and the limits of the European approach. As a final purpose, this work tries to point up some of these differences' origins. In this way, we argue that, if the US and the EU antitrust authorities are consistent with their respective conceptions of competition, these policies are not neutral on the innovation incentives