Sustainability Objectives in Competition and Intellectual Property Law (LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition)

Preface
Contents
Editors and Contributors
List of Abbreviations
Part I: Sustainability Objectives in Competition Law
	1: Sustainability and Competition Law: An International Report
		1.1 Introduction
		1.2 General Framework
		1.3 Specific Interaction and Cases
		1.4 Shield
		1.5 Sword
		1.6 Greenwashing
		1.7 Agency and Legislative Activities in the Areas of Competition and Sustainability
		1.8 Other Competition-Law-Related Subjects and Competition
		1.9 Conclusion
	2: Sustainability and Competition Law in Austria
		2.1 Introduction
		2.2 Sustainability and Antitrust Law
		2.3 Exemption Under Section 2 Para. 1 Cartel Act (Article 101 Para. 3 TFEU)
		2.4 Efficiencies
		2.5 Fair Share for Consumers
		2.6 Indispensability of the Restrictions
		2.7 No Elimination of Competition
		2.8 Evaluation of the Amended Austrian Cartel Act
		2.9 Environmental Advertising and Unfair Competition Law
		2.10 Applicability of the UWG to Environmental Advertising
		2.11 Prohibition of Misleading Statements (Section 2 UWG)
		2.12 Product-Related Advertising
		2.13 Advertising with Environmental Certificates
		2.14 Corporate-Related Advertising
		2.15 Advertising with Self-Evident Facts
		2.16 Conclusion
	3: Sustainability and Competition Law in Belgium
		3.1 Introduction
		3.2 Legal Framework
		3.3 Enforcement Record
		3.4 Advocacy and Prioritization
		3.5 Conclusion
	4: Sustainability and Competition Law in Brazil
		4.1 General Framework
			4.1.1 Definition of Sustainability
			4.1.2 The Role of Sustainability in Competition Law
			4.1.3 Specific Laws and Rules That Address the Intersection Between Sustainability and Competition Law
		4.2 Specific Interaction and Cases
			4.2.1 Brazilian Cases Where Sustainability Played a Role in the Enforcement of Competition Law
			4.2.2 Brazilian Cases of Illegal Anticompetitive Conduct or Green Washing Conduct in the Context of Sustainability Initiatives
				4.2.2.1 Brazilian Cases of Genuine Sustainability Initiatives Served as a Springboard for Other Anticompetitive Behavior
		4.3 Agencies and Legislature
			4.3.1 The Role of Agencies
			4.3.2 The Role of Legislature and Specific Committees
	5: Sustainability and Competition Law in Czech Republic
		5.1 Introduction
		5.2 Policy and Law Setting: The Potential Impact of Sustainability on the Protection of Competition
		5.3 Case Law on the Protection of Competition and the (Lack) of Sustainability Impact
		5.4 Agencies and Legislature for Sustainability
		5.5 Conclusion
	6: Sustainability and Competition Law: A French Perspective
		6.1 Sustainability in the French Competition Law Framework
			6.1.1 A Concept Akin to Environmental Protection
			6.1.2 Sustainability in French Competition Law
			6.1.3 The Future of Sustainability in French Competition Law Enforcement
		6.2 Sustainability in the French Competition Law Decisional Practice and Case Law
			6.2.1 Sustainability ``as a Sword´´
				6.2.1.1 Sustainability ``as a Sword´´ in Antitrust
				6.2.1.2 Sustainability ``as a Sword´´ in Merger Control
			6.2.2 Sustainability ``as a Shield´´
			6.2.3 Sustainability ``as a Trap´´
	7: Sustainability and Competition Law in Germany
		7.1 Introduction
		7.2 General Framework
			7.2.1 Definition of Sustainability
			7.2.2 Role of Sustainability in Competition Law
				7.2.2.1 General Framework: Constitutional Law, European Law, Climate Protection Act (KSG)
				7.2.2.2 Cartel Prohibition
					7.2.2.2.1 Section 1 GWB (Equivalent to Article 101 TFEU)
					7.2.2.2.2 Section 2 GWB (Equivalent to Article 101 (3) TFEU)
				7.2.2.3 Prohibition of Abuse of a Dominant Position (Section 19 GWB)
				7.2.2.4 Merger Control
				7.2.2.5 Reference Point: European Competition Law
			7.2.3 Specific Legislative Provisions on or with Relevance to Sustainability and Competition Law
				7.2.3.1 Exemptions in Force
				7.2.3.2 Former Exemptions
		7.3 Case Law
			7.3.1 Sustainability as a Sword
				7.3.1.1 DSD
				7.3.1.2 DSD/Remondis
			7.3.2 Sustainability as a Shield
				7.3.2.1 Merger Control Cases
					7.3.2.1.1 E.ON/Ruhrgas
					7.3.2.1.2 Miba/Zollern
					7.3.2.1.3 Beretta/Ammotec
				7.3.2.2 Individual Guidance
			7.3.3 Greenwashing Cartels: Sustainability Initiatives as a Cover for Illegal Conduct
				7.3.3.1 GGA
				7.3.3.2 Agrardialog Milch
		7.4 Policy and Reform
			7.4.1 General Guidance
			7.4.2 Reform Proposals
				7.4.2.1 Monopolies Commission
				7.4.2.2 Legislative Activity
	8: Sustainability and Competition Law in Hungary
		8.1 Introduction
			8.1.1 Definition of Sustainability
			8.1.2 Sustainability in Competition Law Rules
			8.1.3 Sustainability Rules Relevant from a Competition Law Perspective
		8.2 Cartels and Sustainability
			8.2.1 Use of Sustainability Ex Post (Exempted Agreements)
				8.2.1.1 Legislative Framework
				8.2.1.2 Sustainability Agreements in Hungarian Case Law
					8.2.1.2.1 Portable Batteries Case
					8.2.1.2.2 Lead-Acid Accumulators Case
					8.2.1.2.3 Beer Case
					8.2.1.2.4 Lubricants Case
					8.2.1.2.5 Comments to the Case Law
			8.2.2 Use of Sustainability Ex Ante (Preventive Integration)
		8.3 Abuse of Dominance and Sustainability
			8.3.1 Legislative Framework
			8.3.2 Use of Sustainability as a Sword
				8.3.2.1 Practice
			8.3.3 Use of Sustainability as a Shield
				8.3.3.1 Practice
					8.3.3.1.1 Children´s Safety Service Case
					8.3.3.1.2 Rail Freight Case
		8.4 Mergers and Sustainability
			8.4.1 Legislative Framework
				8.4.1.1 Mergers with a Community Dimension
				8.4.1.2 Mergers with No Community Dimension
			8.4.2 Competition Analysis
				8.4.2.1 Use of Sustainability as Sword
					8.4.2.1.1 First Scenario: Effects on Sustainability Pointing in the Same Direction as Effects on Prices
					8.4.2.1.2 Second Scenario: Effects on Sustainability Pointing in a Different Direction Than Effects on Prices
				8.4.2.2 Use of Sustainability as a Shield
		8.5 Greenwashing
			8.5.1 Soft Legal Framework: Strict Approach
			8.5.2 Case Law: Less Focus on Enforcement
			8.5.3 Expectations for the Near Future Connected to Greenwashing
		8.6 Private Enforcement and Sustainability
			8.6.1 Public and Private Enforcement of Competition Law
			8.6.2 Sustainability, Competition Law and Private Enforcement: Setting the Framework for Interpretation in Hungary
				8.6.2.1 Underlying Principles Serving as Potential Cornerstones of Interpretation
				8.6.2.2 The Prohibition of Agreements Restricting Competition and the Prohibition of the Abuse of Dominance as the Basis for C...
					8.6.2.2.1 The Prohibition of Agreements Restricting Competition
					8.6.2.2.2 The Prohibition of Abuse of Dominance
			8.6.3 The Material Criteria for Awarding Damages on the Basis of Competition Law Violations in Hungary
				8.6.3.1 Infringement of Competition Law
				8.6.3.2 Damages Suffered
				8.6.3.3 Causal Link
			8.6.4 Procedural Considerations of Damages Actions
				8.6.4.1 Follow-on and Stand-Alone Damage Claims
				8.6.4.2 Action in the Public Interest
				8.6.4.3 Collective Redress (Class Action)
		8.7 Agency Perspective
			8.7.1 Activity in the Area
				8.7.1.1 Enforcement
				8.7.1.2 Non-enforcement
			8.7.2 State of Affairs and Related Considerations
	9: Sustainability and Competition Law in Italy
		9.1 Introduction
			9.1.1 The Concept of Sustainability and Ecological Transition
			9.1.2 The Role of Sustainability in Competition Law
			9.1.3 The Role of the IAA in the Ecological Transition
			9.1.4 The Intersection Between Sustainability and Competition Law
		9.2 Sustainability Initiatives Undertaken at the Italian Level by the Relevant Authorities
			9.2.1 Working Documents and Guidelines Provided by Administrative and Political Authorities
			9.2.2 IAA Activities on Sustainability and Advisable Actions
			9.2.3 Legislative Initiatives on Sustainability at the National Level
		9.3 Specific Cases Related to Sustainability Issues Investigated by IAA
	10: Sustainability and Competition Law in Malta
		10.1 The Concept of Sustainability
		10.2 Competition Law and Sustainability
			10.2.1 Complementary Objectives
			10.2.2 Sustainability and the Enforcement and Advocacy of Competition Law
			10.2.3 Competence and Cooperation
			10.2.4 Laws, Guidance and Policies
		10.3 Conclusion
	11: Sustainability and Competition Law in Switzerland
		11.1 Introduction
		11.2 General Legal Framework
			11.2.1 Introductory Remarks on the Concept of Sustainability in Swiss Law
			11.2.2 The Role of Sustainability in Swiss Competition Law
			11.2.3 The Intersection Between Sustainable Development and Competition Law
		11.3 Specific Interaction/Cases
			11.3.1 Absence of Cases Where Sustainability Has Played a Role in Competition Law Enforcement in the Form of a `Sword´
			11.3.2 Cases Where Sustainability Has Played a Role in the Enforcement of Competition Law in the Form of a `Shield´
				11.3.2.1 Cases Where Competition Law Has Not Been Infringed
				11.3.2.2 Cases Where the Comco Weighed the Environmental Benefits Against the Harm to Competition
			11.3.3 Illegal Anti-Competitive Behaviour in the Context of Sustainability Initiatives
				11.3.3.1 Green Washing
				11.3.3.2 Genuine Sustainability Initiatives that Served as a Springboard for Other Anti-Competitive Behaviour
		11.4 The Activity of Agencies, Legislator and Specific Commissions in the Field of Sustainability
			11.4.1 Public Procurement
			11.4.2 Sustainable Finance
		11.5 Conclusion
	12: Sustainability and Competition Law in the United Kingdom
		12.1 Introduction
		12.2 Sustainability Agreements and the Chapter I Prohibition
			12.2.1 What Is a `Sustainability Agreement´?
			12.2.2 Why Is Cooperation Between Businesses Important?
			12.2.3 Recent Developments in the UK
			12.2.4 Sustainability as a `Shield´ and the Chapter I Prohibition
				12.2.4.1 Agreements Not Caught by the Chapter I Prohibition
				12.2.4.2 Exclusion from UK Competition Law
			12.2.5 The Exemption Criteria and Sustainability Agreements
				12.2.5.1 Condition One: `Benefits´
				12.2.5.2 Condition Two: `Fair Share´
				12.2.5.3 Collective Benefits
				12.2.5.4 Qualitative or Quantitative?
				12.2.5.5 Conditions Three and Four - `Indispensability´ and `Elimination of Competition´
			12.2.6 Using Competition Enforcement as a `Sword´ to Promote Sustainability
			12.2.7 Conclusion
		12.3 Using Abuse of Dominance Laws to Help Take Action for a Sustainable Future
			12.3.1 The Chapter II Prohibition as a `Sword´ to Attack Unsustainable Practices
			12.3.2 Unfair Prices and Conditions [Section 18 (2)(a) CA98 and Article 102(a) TFEU ]
				12.3.2.1 Unfair Purchase Prices
				12.3.2.2 Predatory Pricing
				12.3.2.3 Other Unfair Trading Conditions
			12.3.3 Limiting the Production of Products or Services [Section 18(2)(b) CA 98 and Article 102(b) TFEU]
			12.3.4 Using Sustainability as a `Shield´
			12.3.5 Some Concluding Remarks on the `Shield´
			12.3.6 Conclusion on Abuse of Dominance and Sustainability
		12.4 UK Merger Control and Sustainability in the UK
			12.4.1 Sustainability as a `Sword´: Assessing Sustainability as a Parameter of Competition
			12.4.2 Sustainability as a `Shield´: Offsetting SLCs with Sustainability Benefits
			12.4.3 Consideration of Sustainability Issues in CMA Merger Reviews to Date
			12.4.4 Incorporating Sustainability into Merger Control Going Forward
			12.4.5 Public Interest Regime
			12.4.6 Sustainability and the UK´s Market Inquiry Regime
			12.4.7 Conclusion
		Appendix 1: Simon Holmes, Selected Papers on Climate Change, Sustainability and Competition Policy
Part II: Sustainability Objectives in Intellectual Property Law
	13: Sustainability and Intellectual Property in Austria
		13.1 Introduction
		13.2 Current Status of Sustainability in Austrian IP Law
			13.2.1 Overview
			13.2.2 Patent Law
			13.2.3 Trademark Law
			13.2.4 Recent M&A Transactions in the Field of Sustainability
		13.3 The Role IP Should Play in Sustainability
			13.3.1 Overview
			13.3.2 Educational Challenges to Foster Sustainable Innovations
			13.3.3 Easier IP Application Procedures
			13.3.4 Easier Access to Obtain Patent Protection
			13.3.5 Easier Access to Innovative Processes Through Knowledge Sharing
			13.3.6 Easier Access Through Digitalisation
			13.3.7 Drafting New IP Laws for Sustaibable Innovations?
		13.4 Improving the Success of IP´s Role in Sustainability
		13.5 Conclusion
	Untitled
	14: Sustainability and Intellectual Property in Brazil
		14.1 The Current Role IP Play in Sustainability in Brazil
		14.2 How This Role Is Pursued
		14.3 How to Improve It
		14.4 Conclusion
	15: Sustainability and Intellectual Property in Germany
		15.1 Introduction
		15.2 Definition of Sustainability
			15.2.1 Legal Understanding of the Term
			15.2.2 Social-Ethical Understanding of the Term
			15.2.3 Political Science Understanding of the Term
			15.2.4 Economic Understanding of the Term
			15.2.5 Essential Features of `Sustainability´
		15.3 Current Status: Intellectual Property Rights and Sustainability
			15.3.1 Patent Law
				15.3.1.1 Possible Positive Effect of Patent Protection
				15.3.1.2 Possible Negative Effects of Patent Protection and Alternatives
				15.3.1.3 Efforts of the DPMA
				15.3.1.4 Interim Result
			15.3.2 Trade Secrets Law
				15.3.2.1 Possible Advantages and Disadvantages of Trade Secrets Protection
				15.3.2.2 Interim Result
			15.3.3 Design Law
			15.3.4 Copyright
				15.3.4.1 Sustainable Works
				15.3.4.2 Official Works
				15.3.4.3 Software, Algorithms and Data
				15.3.4.4 Interim Result
			15.3.5 Trademark Law
			15.3.6 Interim Result
		15.4 Promoting Sustainability in the Context of Intellectual Property Rights-Outlook and Ideas
			15.4.1 Patent Law
				15.4.1.1 Green Impact Fund for Technology
				15.4.1.2 National Level
					15.4.1.2.1 Amendment of Patenting Requirements
					15.4.1.2.2 Patent Exclusion
					15.4.1.2.3 Accelerated Granting Procedure
					15.4.1.2.4 Cost Savings for `Green´ Inventors
					15.4.1.2.5 Compulsory Licence and Tacit Licence
					15.4.1.2.6 Interim Result
			15.4.2 Trade Secret Law
				15.4.2.1 Freedom of Information Rights
				15.4.2.2 Negative List
				15.4.2.3 Economic Value
				15.4.2.4 Interim Result
			15.4.3 Design Law
				15.4.3.1 Exceptions: Essential Interests of Environmental Protection
				15.4.3.2 Destruction and Recall
				15.4.3.3 Interim Result
			15.4.4 Copyright
				15.4.4.1 Official Works
				15.4.4.2 Data
				15.4.4.3 Interim Result
			15.4.5 Trademark Law
		15.5 Result
	16: Sustainability and Intellectual Property in Hungary
		16.1 Introduction
		16.2 Sustainability Considerations of Individual IP Rights
			16.2.1 Current Regulatory Standpoint
			16.2.2 Necessary Changes for a Sustainable IP Regime
			16.2.3 Further Rights To Be Adopted
		16.3 IP Framework in Hungary
		16.4 How We Would Amend the Hungarian IP Framework
		16.5 Conclusion
	17: Sustainability and Intellectual Property in Italy
		17.1 Introduction
		17.2 Whether IP Has a Role in Sustainability
		17.3 The Role That IP Should Play in Sustainability
			17.3.1 Trademarks
			17.3.2 Designs
			17.3.3 Patents
		17.4 How Should This Role Be Pursued
		17.5 The Success of IP in Its Role for Sustainability
		17.6 Improving the Success of IP´s Role in Sustainability
		17.7 Conclusions
	18: Sustainability and Intellectual Property in Malta
		18.1 Intellectual Property and Sustainability in the Maltese Islands
			18.1.1 A Brief Overview of Existing Legislation
			18.1.2 Existing Local Initiatives, Programmes and Strategies: A General Perspective
		18.2 The Role of Intellectual Property in the Journey Towards Sustainability
			18.2.1 Introduction
			18.2.2 The Role of Intellectual Property in Malta, and How It Should Be Pursued
			18.2.3 Creating Change Through New Policy and Legislative Frameworks
			18.2.4 Creating Change by Incentivising Sustainable Innovation
		18.3 Malta´s Current Intellectual Property Framework
			18.3.1 The Current Landscape
			18.3.2 Creating Further Rights to Support Sustainability
			18.3.3 Enforcement of IP Rights in Malta
			18.3.4 The Role of Intellectual Property Authorities in the Journey Towards Sustainability
			18.3.5 The Way Forward
		18.4 Promoting National and International Cooperation
			18.4.1 The Role of International Treaties and Agreements
		18.5 Conclusion
	19: Sustainability and Intellectual Property in Sweden
		19.1 Background
			19.1.1 European Conformity
			19.1.2 Defining Sustainability
		19.2 The Current Role of IP in Sustainability
			19.2.1 Swedish Public Policy on Sustainability
				19.2.1.1 The Position of the Intellectual Property Office
			19.2.2 European Public Policy on Sustainability
			19.2.3 International IP Policy on Sustainability
				19.2.3.1 Technology Transfers
			19.2.4 The Current Role of IP in Sustainability
		19.3 IP´s Contribution to Unsustainability
			19.3.1 Barriers to Innovation
			19.3.2 Corrective Measures in Cases of Infringement
			19.3.3 The Neutrality of IP vis-à-vis Sustainability
		19.4 Empowerment of Consumer Choices
			19.4.1 Sustainability in Unfair Competition
				19.4.1.1 Environmental Benchmarking and Labels
				19.4.1.2 Burden of Proof in Marketing Communications
			19.4.2 Facilitation of the Circular Economy
			19.4.3 Consumer Choices in a Successful Role for Sustainability
		19.5 Discussion on Possible Improvements in IP for Encouraging Sustainability
			19.5.1 How IP Rights Can Better Contribute to Sustainability
				19.5.1.1 An Introduction of Conditions for Acquiring and Subsisting of IP
			19.5.2 Possible Restrictions on Enforcement of IP in Favour of Sustainability
		19.6 Concluding Remarks
	20: Sustainability and Intellectual Property in Switzerland
		20.1 Introduction
		20.2 Swiss IP Legal Framework Current Role in Sustainability
			20.2.1 Preliminary Remarks
			20.2.2 Swiss IP Legal Framework
			20.2.3 PatA and PatO
				20.2.3.1 Compulsory Licences
				20.2.3.2 Disclosure of Source
				20.2.3.3 Fast Track
			20.2.4 TPA
				20.2.4.1 Certification Marks
				20.2.4.2 Collective Marks
			20.2.5 CopA
		20.3 Specific and Current Measures for Sustainability in Switzerland
			20.3.1 Mandate of the Swiss IP Office re Swiss 2030 Sustainable Development Strategy
			20.3.2 Measures
				20.3.2.1 WIPO GREEN Partnership
				20.3.2.2 Cooperation Projects
				20.3.2.3 Technology Transfer Agreements Templates
				20.3.2.4 National Open Access Strategy
				20.3.2.5 Innosuisse: Swiss Innovation Agency
				20.3.2.6 Swiss Cleantech Report Contribution
			20.3.3 Prospective Measures
		20.4 Conclusion
	21: Sustainability and Intellectual Property in United Kingdom
		21.1 The Role of Intellectual Property in Sustainability
			21.1.1 Introduction
			21.1.2 Patents
			21.1.3 Trade Secrets
			21.1.4 Trademarks
			21.1.5 Copyright
				21.1.5.1 Artificial Intelligence
				21.1.5.2 Data and Databases
			21.1.6 Designs
		21.2 Impact of IP on Sustainability
			21.2.1 Positives
				21.2.1.1 Accessibility and Transparency of IP Registries
				21.2.1.2 The Green Channel
				21.2.1.3 Specific Positives of Designs Regime
				21.2.1.4 Certification Marks
			21.2.2 Negatives
		21.3 Impact of Differing Approaches by Owners/Controllers of IP Rights
		21.4 Normative Role of IP in Sustainability
			21.4.1 Introduction
			21.4.2 Incentivisation and Co-operation
			21.4.3 The Sustainability Dichotomy
			21.4.4 Pursuing This Role
				21.4.4.1 Incentives and the Registration of IP Rights
				21.4.4.2 The Conditions for IP Rights to Subsist
				21.4.4.3 Creation of New IP Rights to Support Sustainability
				21.4.4.4 The Enforcement of IP Rights Against Third Parties
		21.5 Success (or Otherwise) of IP´s Role in Sustainability
			21.5.1 IP Supporting Sustainability
				21.5.1.1 Technological Development and the Relationship with IP
				21.5.1.2 Information and Data from IP Registering Authorities
				21.5.1.3 Procedures and Fees of the IP Right Granting Authorities
				21.5.1.4 IP Incentivisation Schemes
				21.5.1.5 IP Enforcement Systems/Authorities
		21.6 Conclusion