Jacques Bourgeois

Bio: Jacques Bourgeois is an academic researcher. The author has contributed to research in topics: Competition law & Comparative law. The author has an hindex of 2, co-authored 2 publications receiving 5 citations.

Towards an optimal enforcement of competition rules in Europe: Time for a Review of Regulation 1/2003?

Abstract: The Fifth annual conference of the Global Competition Law Centre, held in Brussels on 11-12 June 2009, was dedicated to the Commission's review of EC Regulation 1/2003. These contributions are the…

Towards an Economics of Convention-based Approach of the European Competition Policy

Abstract: Our paper aims at developing an analysis of the European competition law enforcement dynamics based on an economics of conventions' framework. We question the ordoliberal theoretical foundations of the EU competition policy and we assess to what extent the implementation of a "more economic approach" might pertain to a convention inspired by the Chicago School normative views. We question the economic history, the history of economics thought, and the legal history as we consider that the European courts case law is the main driving force of conventional shifts in matter of competition law enforcement.

Protection of competition through the principle of legal certainty - the role of the court of justice of the european union

Abstract: The present work is concentrated on the analysis of the rule of reason of law in European Union law and especially in the sector of european competition law, where the rule of reason is a guarantee of the crystallization of the rules that constituted the normative basis for the law to access to the market, to the tariffs of regulated services rather than to the management of infrastructures, etc. The rule of reason stands as predictability of the consequences of behavior as we see from the analysis of the Court of Justice of the European Union and especially according to the preliminary ruling trying to guarantee the principle under examination as fundamental of the good functioning of the European market, both in the access phase and in the operational phase, to the point that any other Community law is applied only in coherence and full compatibility with the latter.

Post-sale restrictions in patent and trademark licensing agreements: Validity and compliance with competition law

Abstract: Post-sale restrictions in patent and trademark licensing agreements and their validity and compliance with competition law emphasize the problematic to what extent the intellectual property holder may enforce its IP rights. In today’s innovative markets, licensing is a one form of how the IP holder may exploit its IPR and obtain revenues. Post-sale restrictions are part of the scope of the license, when the IP holder grants a right to, for instance, single-use of the IP protected product or part of it. The IP holder may also aim to prohibit the use of another supplier’s products in relation to its main product. In other words, a prohibition to reuse the spare part may be imposed. Post-sale restrictions as a licensing practice raise several legal questions, which are examined in the thesis, such as whether such restrictions are valid and in compliance with competition law. Ultimately, the discussion concerns the interaction between IP and competition law and which assessment should prevail. Comparative aspects are also considered by contrasting the EU approach with the U.S. one. From the perspective of validity under patent and trademark laws, the application of the exhaustion doctrine is an essential parameter to be considered. The exhaustion may be limited either by justifications under patent law or alterations limitations under trademark law. Licensing may be also considered as a limitation for the exhaustion doctrine, however, with reservations. Post-sale restrictions in licensing agreements under patent or trademark law can be said being generally valid, when within the scope of patent or trademark protection. The consent of the IP holder is the key element in order to determine validity. However, post-sale restrictions may not interfere with other areas of law such as competition law or internal market freedoms. Considering the more flexible protection of trademark licensing with post-sale restriction compared to patent one, a shift from patent licensing can be considered as a possible solution. It is suggested that the most beneficial option would be a hybrid license benefiting from both types of protection. Ultimately, the use of post-sale restriction in licensing is a strategic decision of companies, which requires allocation of risks, especially given the possible competition law scrutiny. From the perspective of competition law, the validity of post-sale restrictions under patent or trademark laws cannot be considered as a presumption of compliance with competition law. Regardless the validity, such conduct could constitute an abuse of dominant position in the form of tying or abuse of procedure. Even though a dominant company has a legal right to exploit its IPRs under patent or trademark law, such exploitation must not be excessive resulting in anti-competitive disclosure of neither the primary nor the aftermarket by misusing its IP as tying. Neither any abuse of procedure is accepted. In this context, a theory of harm is an essential consideration in assessing the competitive effects of post-sale restrictions. At a policy level, competition law is not generally subordinate to IP laws, even in the case of valid restrictions under IP laws. However, in the case of parallel proceedings, competition law may exceptionally be subordinate to IP laws when the competition law assessment may be dependent on the outcome of the IP procedure as far as the scope of IP is concerned. For the sake of clarity, good faith infringement procedures resulting in a res judicata decision should be followed in the competition law assessment. Considering the ideal balance between competition and IP law assessment, such assessments should be complementary with each other. However, for expediency reasons, in certain cases, competition law scrutiny may not be conducted simultaneously before the scope of IP has been considered under IP laws.

Member States’ Interest in the Enforcement of EU Competition Law

Abstract: The decentralisation of the public enforcement of Articles 101 and 102 TFEU under Regulation 1/2003 altered not only its institutional setup by delegating enforcement responsibilities to national competition authorities (NCAs) and courts, but also the possibilities for Member States to implement their respective national competition policies and the domestic interest considerations embedded therein. In the multilevel governance framework established by Regulation 1/2003, the enforcement of EU competition law takes place exposed to the national political, institutional and procedural context. In particular, national laws and legal and administrative practices, which bind NCAs and national courts, directly influence the application of Articles 101 and 102 in the national territory. This chapter examines examples of such national measures and practices and assesses their impact of re-nationalising EU competition law and policy.

Outlook: Discussion of Reform Proposals

Abstract: So far, the present study has argued that most of the criticism that is levelled at the Commission’s use of commitment decisions is not justified. In the view defended here, the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also only a modest negative impact on legal certainty. It is submitted that these modest shortcomings are, from an abstract point of view, acceptable in view of the consensual nature of commitments and of their underlying goal of procedural economy. This conclusion applies without prejudice to the necessity to balance the respective costs and benefits of Article 7 and Article 9 in each individual case according to the circumstances of the case at hand.