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The proceedings of a study day held in Paris on 21 September 2004, this collective work is the latest testimony of FNDE’s attachment to the Community competition rules applicable to technology transfer agreements. A comfortable way to report on the debates that took place during this day could consist in the summary evocation of the content of the successive interventions. Nevertheless, based on the concern expressed at the beginning by Professor Jacques Azéma about the repercussions of the "new approach" as well as on the oppositions noted and then overcome by Professor Didier Ferrier in his synthesis work, it seems more judicious to highlight two key ideas that emerged from the work carried out during this day. Although, like its predecessors, the block exemption regulation under review makes new room for economic analysis, the use of the legal approach is still of obvious interest in the case of certain questions.
The intervention of Professor Jacques Raynard, devoted to "the civil law aspects of technology transfer agreements", shows that the legal approach remains essential to study the qualification and the regime of intellectual property rights and the related contracts. This author reminds us that the Regulation under analysis "is not intended to constitute a substantive Community law of the rules governing licence agreements". However, the reading of his presentation, supplemented by the summary prepared by Didier Ferrier, reveals that the undifferentiated treatment of intellectual property rights to which the Regulation proceeds exerts a certain "attraction", if not influence, on the discussed regime of some of these rights and the contracts of which they are the object. The determination of the scope of application of the Regulation under examination is also the result of a legal approach and is based, in particular, on a work of definition undertaken by Professor Yves Reboul. It thus emerges from his presentation that an agreement falls within the scope of the Regulation under consideration because of its subject matter and the number and quality of the contracting parties. In addition, in one of her many speeches, Mrs Boix-Alonso, administrator at the European Commission’s Competition DG, indicated that the verification of the absence of a hardcore restriction must be a preliminary step in calculating the market shares of the parties to the agreement. However, this verification, not to say qualification, is primarily a legal task. In the course of her speech on this category of restrictions, Professor Sylvaine Poillot-Peruzzeto noted that the regulation under examination allows three types of clauses to remain: hardcore restrictions, the presence of which in principle precludes the exemption of the entire agreement; clauses which, provided they do not exceed the market share thresholds, are authorised as a clause escaping classification as hardcore restrictions; and finally clauses not mentioned. The questions raised by Pascal Kamina, Senior Lecturer at the University of Poitiers, in the context of his study of so-called "excluded" restrictions - restrictions which cannot benefit from the block exemption but which do not prevent the exemption of the rest of the agreement - do not negate the importance of the legal approach.
However, this finding should not conceal the increasing importance of economic analysis in the assessment of these same agreements. During her presentation of the genesis of the Regulation, Lorena Boix-Alonso pointed out that agreements not covered by the Regulation are not necessarily prohibited either because they can claim individual exemption or simply because they do not fall within the scope of Article 81(1) EC. This second branch of the alternative is important. As Professor Laurence Idot pointed out in his presentation on the exemption linked to market share thresholds, before considering the application of Regulation 772/2004, it is necessary, at least in theory, to first assess whether the agreement falls within the scope of Article 81(1) EC. However, the competition law specialist knows to what extent the answer to this preliminary question requires economic analysis and in particular numerical criteria. Nevertheless, this question is most often dealt with in a second stage. In practice, the Commission encourages the Commission to check first of all whether the agreement in question falls within the safe harbour defined by the market share thresholds, even though it may not fall within the scope of Article 81(1) EC. Dominique Ferré, participating in the final round table as a practitioner, does not seem to contest this way of proceeding when he explains that the legal expert will begin by assuming the restrictive nature of the agreement. Turning first to the conditions of the exemption and then to the scope of the exemption, Professor Idot acknowledged that the new methodology, based on market power and reflected in the use of thresholds, allowed for adaptation to the economic reality. It follows from his explanations that the economic approach nevertheless leaves uncertainties linked to the prior delimitation of markets and the evolution of market shares over time. These uncertainties therefore necessitate a regular review of practices and lead to a renewal of the role of lawyers within the company, an issue which was not failed to be raised by the participants in the final panel discussion.