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Contents List of contributors vii Preface ix Table of cases xiv Table of legislation xxii
PART I INNOVATION THROUGHOUT COMPETITION LAW
ANALYSIS
1. Innovation in competition law analysis: making sense of
on-going academic and policy debates 2 Pieter Van Cleynenbreugel 2. The effects of mergers on innovation: economic framework and empirical evidence 13 John Kwoka 3. Innovation by dominant firms in the market: damned if you don’t … but damned if you do? 33 Francisco Marcos 4. Protecting innovation from unfair practices 50 Juha Vesala
PART II INNOVATION AND REGULATION: CHALLENGES
FOR COMPETITION LAW AND POLICY
5. Data protection considerations in EU competition law:
funnel or straightjacket for innovation? 79 Nicolo Zingales 6. Healthcare systems and competition: challenges and boundaries for the application of competition law in the EU healthcare sector 131 Claudia Seitz
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vi The roles of innovation in competition law analysis
7. Competition policy and the development of big data and
artificial intelligence 162 Shuya Hayashi, Kunlin Wu and Benjawan Tangsatapornpan
PART III COMPETITION LAW AND INTELLECTUAL
PROPERTY LAW: MAKING INNOVATION WORK?
8. Joint research and development collaborations under
competition law 179 Björn Lundqvist 9. Patent settlements in the pharmaceutical industry: what can we learn from economic analysis? 215 Jonas Severin Frank and Wolfgang Kerber 10. Access to justice as abuse of market power? Injunctive relief for standard-essential patents under US antitrust and EU competition law 246 Viktoria HSE Robertson and Marco Botta 11. The abuse of rights in EU competition law and beyond 274 Mariateresa Maggiolino and Maria Lillà Montagnani
PART IV THE PLATFORM ECONOMY: INNOVATION AND
COMPETITION LAW AT CROSSROADS?
12. The digital economy: a challenge for competition policy? 299
Daniel Zimmer 13. Tying and two-sided digital platforms 307 Petri Kuoppamäki 14. Online platforms, rate parity and the free-riding defence 341 Simonetta Vezzoso
Appendix 377 Index 379
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Marco Botta, Senior Research Fellow, Max Planck Institute for Innov- ation and Competition, Munich (Germany) Jonas Severin Frank, Research Fellow in Economics, Philipps- University Marburg (Germany) Shuya Hayashi, Professor of Law, Nagoya University Graduate School of Law (Japan) Wolfgang Kerber, Professor of Economics, Philipps-University Marburg (Germany) Petri Kuoppamäki, Professor of Law, Aalto University, School of Business (Finland) John Kwoka, Professor of Economics, Northeastern University (United States) Björn Lundqvist, Associate Professor of Law, Stockholm University (Sweden) Mariateresa Maggiolino, Associate Professor of Law, Bocconi Univer- sity, Milan (Italy) Francisco Marcos, Professor of Law, IE University, Madrid (Spain) Maria Lillà Montagnani, Associate Professor of Law, Bocconi Univer- sity, Milan (Italy) Paul Nihoul, Professor of Law, UC Louvain (Belgium); Court of Justice of the European Union Viktoria HSE Robertson, Assistant Professor of Law, University of Graz (Austria) Claudia Seitz, Max Geldner Assistant Professor of Life Sciences Law, University of Basel (Switzerland) Benjawan Tangsatapornpan, LL.D. Candidate, Nagoya University Graduate School of Law (Japan)
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viii The roles of innovation in competition law analysis
Pieter Van Cleynenbreugel, Professor of Law, University of Liège
(Belgium) Juha Vesala, Post-doctoral Researcher in Law, University of Helsinki (Finland) Simonetta Vezzoso, Professor for Competition Policy and Intellectual Property and Senior Researcher, Department of Economics and Manage- ment, Trento University (Italy) Kunlin Wu, LL.D. Candidate, Nagoya University Graduate School of Law (Japan) Daniel Zimmer, Professor of Law, University of Bonn (Germany) Nicolo Zingales, Lecturer in Law, Sussex University (United Kingdom)
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Preface In today’s society, innovation has become a key driver for economic policymaking. When trying to shape an innovative market environment, competition law can intervene in various ways. Approaching the subject from multiple angles and disciplines, the different chapters in this volume all focus in one way or another on the complex and varied relationship between competition law and innovation. Part I, entitled ‘Innovation throughout competition law analysis’, focuses on the appearance and relevance of innovation as an instrument throughout competition law analysis. The part contains four chapters, which explore to what extent references to innovation feature and are granted room within existing competition law analytical frameworks. Chapter 1 by Pieter Van Cleynenbreugel demonstrates that innovation appears at different stages throughout competition law analysis. Both as a phenomenon exogenous to competition law analysis and as a tool embedded in competition analysis, references have been made to innov- ation. The author therefore calls for a more explicit differentiation between different types of competition law and innovation analysis, in order better to structure and understand academic debates in this context. Subsequent chapters within Part I deal with how innovation concerns have appeared throughout specific subtypes of competition law analysis. In the context of mergers, Chapter 2 by John Kwoka successfully shows that, within the context of pharmaceutical industry mergers, the scope for innovative business practices and research and development investments has diminished. That analysis concludes that the current analytical frameworks in place in the context of merger control do not necessarily and sufficiently take innovation into account. The author therefore calls for a more explicit attention to innovation in this regard. That sentiment is confirmed by Francisco Marcos in Chapter 3, who highlights the inherent tensions that dominant firms face both to innovate and to refrain from innovating. The current setup of competition law frameworks does not necessarily and automatically allow pro-innovation arguments to enter the realm of abuse regulation enforcement. Therefore, the author calls upon considering dynamic efficiency as the parameter for analysing firms’ behaviour. Taking up this challenge, Juha Vesala, in Chapter 4,
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argues that certain theories of harm informing antitrust authorities have
seemingly considered antitrust harm to be present when other firms are deprived of innovation opportunities as a result of other than exclusionary conduct. Given that it is difficult to establish clearly and unambiguously when this is the case, the author calls for caution. He therefore proposes, in order to avoid deterring practices that overall promote innovation and consumer welfare, an enforcer’s assessment framework under which anti-competitive effects on innovation have to be established as likely and the conduct either as not reasonably necessary for attaining redeeming or pro-competitive benefits or as unlikely to produce pro-competitive bene- fits that outweigh the anti-competitive effects. Proposing a test to that extent, the author argues, would allow better integration of innovation- oriented arguments in a competition law framework focused on tackling abusive practices. Part II of the book, entitled ‘Innovation and regulation: challenges for competition law and policy’, complements Part I in exploring the relationship between competition law analysis on the one hand and regulation adopted in an attempt to structure, guide and promote tech- nological innovation on the other hand. It is the case indeed that innovations are not only left to the market, but also become the object of specific regulatory instruments. The regulation of innovation poses new challenges for competition law and policy, as Part II demonstrates. In the field of the new economy, data and data protection regulation have been playing a major role in that regard. In Chapter 5, Nicolo Zingales explores the intricate relationship between data protection regulation and competition law. Focusing predominantly on the regulatory initiatives taken at European Union level, Zingales shows that both regulatory frameworks do not operate in a sufficiently coordinated fashion in order to avoid different approaches towards law and innovation to subsist in this regard. He therefore proposes interinstitutional coordination mech- anisms to better streamline the application and enforcement of both types of regulation. A similar conclusion can be drawn in the context of health care services, where innovations tend also to be subject to significant degrees of regulation. As Claudia Seitz demonstrates in Chapter 6, attention to the streamlining health care regulation and competition law could also be improved. In Chapter 7, Shuya Hayashi and co-authors show that similar problems may also require more explicit attention in the context of the regulation of artificial intelligence. In that field, the use of data is a necessity in order for firms to innovate. Calling for a regulatory framework on data portability and standardisation that is more reflective of competition law concerns, the authors show that more reflection is needed on how to attune artificial intelligence and big data
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policies and proposed regulations in that field to the framework set up by
antitrust law. The different chapters throughout the first two parts of the book conclude preliminarily that, on a more abstract level, innovation concerns are present yet not necessarily fully and directly taken into consideration within the framework of antitrust analysis itself. That lack of direct consideration could be explained partially by the fact that innovation as a generally applicable notion is relatively difficult to grasp in all its varieties. Parts III and IV of the edited volume therefore explore two more specific contexts in which innovation-related arguments come most explicitly to the foreground: the intersection between competition law and intellectual property law on the one hand and the application of competition law to digital platforms on the other hand. Both topics have gained relevance in recent years, although many open questions remain at this stage. The contributions in Parts II and III frame those questions and offer some tentative answers to them. Part III, entitled ‘Competition law and intellectual property law: making innovation work?’, focuses on the relationship between com- petition law and intellectual property law and the room granted for innovation-related arguments in that context. On the one hand, intellec- tual property law is meant to protect the fruits of one’s innovative practices. On the other hand, competition law aims to guarantee that markets continue to foster and stimulate innovation. It goes without saying that the confrontations between both fields of law make sense of the role of innovation in competition law analysis. Part III contains four chapters that deal with the thorny relationship between competition law and intellectual property law. In Chapter 8, Björn Lundqvist explores the issue of joint research and development agreements and their treatment under competition law. Criticising the all-too-often backward-looking focus of antitrust agencies in relation to such agreements, the author explores ways in which a forward looking perception, targeted towards what will happen when two firms collaborate in R&D, can take shape. In Chapter 9, Severin Frank and Wolfgang Kerber focus on patent settle- ments and their impact on antitrust analysis from an economic point of view. Identifying several gaps in the current analytical framework, the authors propose a way forward in fine-tuning patent law and antitrust analysis. Within the same realm, Viktoria Robertson and Marco Botta in Chapter 10 deal with the vexed topic of so-called standard-essential patents and their treatment under competition law. Those patents, the use of which is necessary in order to guarantee the safety of a new product relying on patented technology, in a certain way limit the possibilities to engage in innovative techniques and features, all the more when patent
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holders engage in litigation with potential and willing licensees. Focusing
on litigation in both the United States and, above all, the European Union, both authors argue that the different tests applicable on both sides of the Atlantic result in different approaches towards the subject-matter. Without calling for a complete streamlining of tests, the authors at the very least look at ways to harmonise in some ways the treatment of standard-essential patents under competition law. The final chapter of this part, Chapter 11, touches upon the more general issue of abuse of rights in antitrust law. The different innovations and protective mechanisms put in place may have as a consequence seemingly to stimulate abusive exercises of rights conferred by antitrust law. Against the background of the previous chapters, Mariateresa Maggiolino and Maria Lillà Montag- nani analyse what law can do to prevent and avoid such abusive applications of rights aimed at addressing anticompetitive behavior. Part IV of the edited volume focuses on the challenges raised by digital platforms as a matter of competition law. Entitled ‘The platform economy – innovation and competition law at crossroads?’, it contains three chapters. In Chapter 12, Daniel Zimmer offers a general analysis as to whether competition law is ready to deal with the challenges of the platform economy. Building upon his work within the German Monop- olies Commission and the report prepared by it, Zimmer offers a set of strategies that would enable competition law better to deal with the challenges of digital platforms. In Chapter 13, Petri Kuoppamäki, focuses specifically on the practice of tying in the context of two-sided digital platforms. Kuoppamäki analyses when tying by digital platforms is considered problematic from a competition law point of view. Identifying the difficulties in establishing competition law infringements, the author also reflects on what is possible within the legal frameworks currently in place. Chapter 14, by Simonetta Vezzoso, discusses yet another innovation-triggered and potentially anticompetitive phenomenon online platforms engage in: so-called online rate parity clauses prohibiting hotels from charging lower prices for reservations made directly on their websites and not via the intermediary of a platform such as booking.com. Dissecting the approaches national competition authorities have taken on the subject-matter, Vezzoso analyses the possibilities and limits of competition law enforcement against that background. The different chapters aim to offer an overview of the varieties of competition law and innovation analysis currently in place, simul- taneously hoping to stimulate debates on how the legal framework can be adapted or improved in this regard. For assistance during the preparation stages of the book, we would like to acknowledge the much appreciated help of Ms Audrey Zians, Ms Nathalie Defossé and Mr Brieuc Geuzaine,
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research assistants at the University of Liège, who have reread all the chapters and have ensured consistency in footnoting. We are most grateful for their availability, support and their enthusiasm throughout the final stages of this book project.
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Table of cases EUROPEAN UNION Aéroports de Paris v Commission, Case T-128/98, ECLI:EU:T:2000:290 ...... 277 AG2R Prévoyance v Beaudout Père et Fils Sarl, Case C-437/09, EU:C: 2011:112 .......................................................................... 149–50, 160 Airtours v Commission, Case 342/99 [2002] ECR II-02585 ........................... 208 Allianz Hungária Biztosító and Others, Case C-32/11 EU:C:2013:160 ........... 89 Altmark Trans GmbH, Case C-280/00 [2003] ECR I-7810 ......................... 157–8 AOK-Bundesverband and Others, Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 [2004] ECR I-2524 ............................. 146, 148–50 API-Anonima Petroli Italiana SpA, Joined Cases C-184/13 to C-187/13, C-194/13, C-195/13 and C-208/13 ECLI:EU:C:2014:2147 ...................... 93 Asnef-Equifax v Ausbanc, Case C-238/05 [2006] ECR I-11125 ....................... 97 AstraZeneca (Case COMP/A.37.507/F3) Commission Decision C(2005) 1757 final ........................................................................................ 53, 276–9 AstraZeneca v Commission, Case C-457/10 P, EU:C:2012:770 ......... 103–4, 155, 276–9 AstraZeneca v Commission, Case T-321/05, ECLI:EU:T:2010:266 ............ 276–9 Atlantic Container [1983] ECR I-3461, [2003] ECR II-03275 ......................... 99 Belgische Radio en Televisie and société belge des auteurs, compositeurs et éditeurs v SV SABAM and NV Fonior, Case 127/73 [1974] ECR 313; EU:C:1974:25 ....................................................................................... 52, 75 BPB Industries and British Gypsum v Commission, Case T-65/89 [1993] ECR II-389 ................................................................................................ 102 British Airways v Commission, Case C-95/04 P [2007] ECR I-2331 ........ 85, 99, 326 British Airways v Commission, Case T-219/99 [2003] ECR II- 5917 ............. 102 Bronner v Mediaprint, Case C-7/97, [1998] ECR I-7791 ............................... 170 Budìjovický Budvar, národní podnik v AnheuserBusch, C-482/ 09, ECLI:EU:C:2011:605 ................................................................................ 292 Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd v Commissioners of Inland Revenue, C-196/04, ECLI: EU:C:2006:544. ......................................................................................... 290 CBEM v CLT and IPB, Case 311/84 [1985] ECR 3261 ................................. 315 CECED (Case IV.F.I/36.718) Commission Decision 2000/475/EC [2000] OJ L187/47 .................................................................................................. 95 Centrafarm v Sterling Drug, Case C-15/74, ECLI:EU:C:1974:114 ................ 288 Centros, Case C-212/97, ECLI:EU:C:1999:126 ...................................... 290, 294 Clair, Case 123/83 [1985] ECR 391 ................................................................. 104
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Coditel SA v Cine Vog Films SA (No. 2), Case 262/81 [1982] [2001] ECR II-024 ........................................................................................................... 92 Compagnie Générale Maritime and Others v Commission, Case T-86/95 [2002] ECR II-1011 ............................................................................ 96, 371 Competition Authority v Beef Industry Development Society Ltd and Barry Brothers (Carrigmore) Meats Ltd (BIDS), Case C-209/07 [2008] ECR I-08637 ............................................................................................... 89 Consiglio Nazionale degli Ingegneri v Ministero della Giustizia and Marco Cavallera, C-311/06, ECLI:EU:C:2009:37 .............................................. 292 Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato and Autorità garante della concorrenza e del mercato v Consiglio nazionale dei geologi, Case C-136/12 [2013] 5 CMLR 40 ..... 93 Consten and Grundig, Joined Cases 56/64 and 58/66 [1966] ECR 429 ........... 90 Consten and Grundig v Commission, C-56/64 and C-58/64, ECLI:EU:C:1966:41 .................................................................................. 288 Continental/ United/Lufthansa/Air Canada and Alexander Italiener, Commission Decision of 23 May 2013 (Case COMP/AT.39595) [2013] OJ C 201/8 .............................................................................. 96, 371 Dansk Rørindustri, Joined Cases C-189, 202, 205, 208 and 213/02 [2005] ECR I-5425 ............................................................................................... 106 David Meca-Medina and Igor Majcen v Commission, Case C-519/04 P [2006] ECR I-06991 ............................................................................... 93–4 Decker, Case C-120/95 [1998] ECR I-1871 ..................................................... 138 Deutsche Grammophon v Metro, C-78/70, ECLI:EU:C:1971:59 .................... 288 Deutsche Telekom, Case C-280/08 [2010] ECR I-9555 .......................... 102, 104 Diamantis, C-373/97, ECLI:EU:C:2000:150 ........................................... 290, 294 Donaldson Filtration Deutschland GmbH v Ultra Air GmbH, C-450/13 P, ECLI:EU:C:2014:2016. ......................................................................... 292–3 Eichsfelder Schlachtbetrieb, C-515/03, ECLI:EU: C:2005:49 ......................... 292 Emsland·Stärke, C-110/99, ECLI:EU: C:2000:695. ................................... 290–95 E’tablissements Rimbaud SA v Directeur général des impôts and Directeur des services fiscaux d’Aix-en-Provence, C-72/09, ECLI:EU:C:2010: 645 ............................................................................................................. 290 Eurofix-Bauco v Hilti, Commission Decision 88/138/EEC of 22 December 1987 relating to a proceeding under Article 86 of the EEC Treaty (IV/30.787 and 31.488) [1988] OJ L 65/19 .............................. 314–15, 331 European Night Service v Commission, Joined Cases T-374 to T-388/94 [1988] ECR II-3141 .............................................................................. 208–9 Europemballage and Continental Can v Commission, C-6/72, ECLI:EU:C:1975 ....................................................................................... 277 Exxon/Shell (Case IV.33.640) Commission Decision 94/322/EC [1994] OJ L144/20 ....................................................................................................... 95 Facebook/WhatsApp (Case COMP/M.7217) Commission Decision 2014/C 297/04 [2014] OJ C297/13 ....................................................................... 173 Facebook/WhatsApp (Case COMP/M.7271) Commission Decision C(2014) 7239 [2014] OJ C417/4, ........................................................................... 303 FAG-Flughafen Frankfurt/Main AG, Commission Decision of 14 January 1998 (Case IV/34.801) [1998] OJ L72/30 ............................................... 101
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Federación Española de Empresas de Tecnología Sanitaria (Fenin) v EU
Commission, Case C-205/03 P [2006] ECR I-6320 ............................ 151–2 Ferrero SpA against Harald Wohlfahrt, Decision of 27 May 2009 (No B 668 600) Judgment of 22 September 2011 (OHIM) ................................ 292 Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd, Joined Cases C-403/08 and C-429/08 [2011] ECR I-9083, .................................. 87 Ford/ Volkswagen (Case IV/33.814) Commission Decision 93/49/EC [1993] OJ L20/14 .................................................................................................... 95 France Télécom, Case C-202/07 [2009] ECR I-2369 ........................................ 99 GlaxoSmith-Kline Services and Others v Commission, Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P [2009] ECR I-9291 .................................................................................................. 85, 359 GlaxoSmithKline Services v Commission, Case T-168/1 [2006] ECR II-2969 ................................................................................................. 96, 371 Google, Commission Decision of 27 June 2017 (Case COMP/39470) [2018] OJ C 9/11 .................................................................................................. 124 Google/Motorola Mobility (COMP/M.6381) Commission Decision C(2012) 1068 of 13 February 2012 [2012] OJ C 75/1 ..................... 56, 256 Groupement des cartes bancaires (CB) v European Commission, Case C-67/13 P EU:C:2014:2204 ......................................................... 89–90, 356 Halifax and Others v Commissioners for Custom & Excise, C-255/02, ECLI:EU:C:2005:200. ................................................................ 290–92, 294 Herrera, Case C-466/04 [2006] ECR I-5359 ................................................... 138 Hilti v Commission, Case-53/92 P [1994] ECR I-667 .............. 314–15, 331, 337 Hilti v Commission, Case T-30/89 [1991] ECR II-1439 ... 101, 314–15, 320, 331 Hoffman La Roche AG v Commission, Case 85/76 [1979] ECR 461 ........ 85, 88, 98, 323–4 Höfner and Elser, Case C-41/90 [1990] ECR I-2010 ...................................... 146 Huawei v ZTE, Case C-170/13, EU:C:2015:477 ............... 74, 208–9, 248, 266–8 Hungary v Slovakia, C-364/10, ECLI:EU:C:2012:630, ................................... 291 Imperial Chemical Industries v Commission, Case 48/69 [1972] ECR 619 ... 208 IMS Health v NDC Health GmbH & Co, Case C-418/01 [2004] ECR I-5039 ........................................................................................................ 170 IMS Health v NDC Health GmbH & Co, Case T-418/01 [2001] ECR II-3193 ....................................................................................................... 210 Intel Corp, Commission Decision of 13 May 2009, COMP/C- 37.990 [2009] OJ C 227/13 .......................................................... 53, 316–17, 323–4 Intel Corp v Commission, Case C-413/14 P, EU:C:2017:632 ..................... 323–4 Intel Corp v Commission, Case T-286/09, ECLI:EU:T:2014:547 ....... 323–4, 337 Internetportal und Marketing GmbH v Richard Schlicht, C-569/08, ECLI:EU:C:2010:311 ................................................................................ 292 Ioannidis, Case C-326/00 [2003] ECR I-172 ................................................... 138 ITT Promedia NV/Commission, T-111/96, EU:T:1998:183 ............................. 264 Kanal 5 Ltd and TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM) upa., Case C-52/07 [2008] EU:C:2008:703 ......... 52, 75 Klaus Höfner and Fritz Elser v Macrotron GmbH, Case C-41/90 [1991] EU:C:1991:161 ............................................................................................ 61
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Kohll, Case C-158/96 [1998] ECR I-1936 ....................................................... 138
Konkurrensverket v Telia Sonera Sverige AB, Case C-52/09 [2011] ECR I-527 ................................................................................... 75, 102, 104 Lair v Universität Hannover, C-39/86, ECLI:EU:C:1988:322 .................. 289–90 Lammers & Van Cleeff NV v Belgische Staat, C-105/07, ECLI:EU:C:2008:24 .................................................................................. 290 Lancôme parfums et beauté & Cie v OHIM, Case C-593/12 P, ECLI:EU:C:2013:707 ................................................................................ 292 Lancôme parfums et beauté & Cie v OHIM, Case T-204/10, ECLI:EU:T:2012:523 ................................................................................ 292 McCarthy v Secretary of State for the Home Department, Case C-202/13, ECLI:EU:C:2014:2450 .............................................................................. 291 Mag. Lic. Robert Koller, Case C-118/09, ECLI:EU:C:2010:306 ..................... 292 Manufacture française des pneumatiques Michelin v Commission (Michelin II), Case T-203/01 [2003] ECR II-4071 ............................ 99, 326 MasterCard and Others v Commission, Case C-382/12 P, EU:C:2014:2201 ............................................................... 92–3, 96, 360, 372 Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA Case C-179/90 [1991] EU:C:1991:464 ............................................................... 61 Métropole télévision (M6) and others, Case T-112/99 [2001] ECR II-2459 ..................................................................................................... 91–2 Microsoft (Case COMP/C-3/37.792), Commission Decision C(2004) 900 ..... 53, 284 Microsoft (tying) (Case COMP/C-3/39530) Commission Decision of 16 December 2009 (C(2009) 10033) ......................................................... 53 Microsoft, Commission Decision 2007/53/EC relating to a proceeding pursuant to Article 82 of the EC Treaty and Article 54 of the EEA Agreement against Microsoft Corporation, 24 March 2004 [2007] OJ L 32/23 .......................................................................................... 319–22 Microsoft/Skype (Case COMP/M.6281) Commission Decision C(2011)7279 [2011] OJ C341/2 ........................................................... 301–2 Microsoft v Commission (Microsoft I), Case T-201/04 [2007] ECR II-3601 ... 99, 170, 314–16, 319–21, 327–8, 330–35 Molenaar, Case C-160/96 [1996] ECR I-843 ................................................... 138 Motorola – GPRS standard essential patents (Case AT.39985) EC, decision C(2014) 2892 final of 29 April 2014 ... 53, 54, 56, 57, 58, 74, 75–6, 265–6 Nungesser KG and Kurt Eisele v Commission, Case 258/78 [1982] ECR 2015 ............................................................................................................. 92 NV Nederlandsche Banden Industrie Michelin v Commission (Michelin I), Case C-322/81 [1983] ECR 3461 .......................................... 43, 85, 99, 326 O and B, C-456/12, ECLI:EU:C:2014:135 ...................................................... 291 Ordem dos Técnicos Oficiais de Contas v Autoridade da Concorrência, Case C-1/12, [2013] 4 CMLR 20 ............................................................... 93 Perindopril (Servier) (Case AT.39612), EC, decision C(2014) 4955 final of 9 July 2014 .................................................................................................. 53 Pharmaceuticals, Commission Decision of 15 January 2008 (Case No COMP/D2/39.514) .................................................................................... 154
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Port of Genoa, Commission Decision 97/745/EC of 21 October 1997 relating to
a proceeding pursuant to Article 90(3) of the EC Treaty regarding the tariffs for piloting in the Port of Genoa [1997] OJ L301/27 .................. 101 Portuguese airports, Commission Decision 1999/199/EC of 10 February 1999 relating to proceeding pursuant to Article 90 of the Treaty (Case No IV/35.703) [1999] OJ L69/31 ............................................................. 101 Post Danmark A/S v Konkurrencerådet (Post Danmark I), Case C-209/10 EU:C:2012:172 .......................................... 75, 85, 99–100, 102–3, 324, 326 Post Danmark A/S v Konkurrencerådet (Post Danmark II), Case C-23/14 EU:C:2015:651 ...................................................................................... 325–6 Prokent/Tomra (Case COMP/E-1/38113) Commisison Decision C(2006)734 of 29 March 2006 ....................................................................................... 53 Protimonopolný úrad Slovenskej republiky v Slovenská sporitel’#òa as, Case C-68/12, EU:C:2013:71 [2013] OJ C 114/27 ............................................ 94 Rambus (Case COMP/38636) Commission Decision of 9 December 2009 [2010] OJ C 30/17 .................................................................................. 53–4 Remia and Others v Commission, Case 42/84 [1985] ECR 2545 ............ 87, 359 Rio Tinto Alcan (Case COMP/39230) Commission Decision C(2012) 9439 final of 20 December 2012 [2013] OJ C 89/5 ........................................... 53 Samsung – UMTS (Case AT.39939) Commission Decision C(2014) 2891 final [2014] OJ C350/8 ................................................................... 54, 256, 263–5 Shaw, Case T-131/99 [2002] ECR II-2023 ......................................................... 96 Société Technique Minière v Maschinenbau Ulm GmbH, Case 56/65 [1966] ECR 235 ...................................................................................................... 92 Solvay/Honeywell, Case C-616/10, EU:C:2012:445 ......................................... 253 Sot Lelos kai Sia v GlaxoSmithKline, Joined Cases C-468/06 to 478/06 [2008] ECR I-7139 ................................................................... 87, 98, 101–2 Standard & Poor’s (Case COMP/39592) Commission Decision C(2011) 8209 final of 15 November 2011 [2012] OJ C 31/8 .......................................... 53 Stichting Baksteen (Case IV/34.456) Commission Decision 94/296/EC [1994] OJ L131/15 .................................................................................................. 95 Syntehtic Fibers (Case IV/30.810) Commission Decision 84/380/EEC [1984] OJ L207/17, ................................................................................................. 95 Telecom Development, Commission Decision [1999] OJ L 218/24 ................ 208 TeliaSonera, Case C-52/09, [2011] ECR I-527 .................................................. 99 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue, C-524/04, ECLI:EU:C:2007:161 .............................................. 290 Tetra Pak II, Commission Decision 92/163/EEC (Case IV/31043) [1992] OJ L 72/1 ............................................................................................ 314–16 Tetra Pak International v Commission (Tetra Pak II), Case T-83/91 [1994] ECR II-755 ................................................................. 101, 314–16, 320, 331 Tetra Pak v Commission, Case C-333/94 P [1996] ECR I-5951 ...... 314–15, 316, 331 The Publishers Association v Commission, Case C-360/92 P [1995] ECR I-23 .............................................................................................................. 96 Tiercé Ladbroke v Commission, Case T-504/93 [1997] ECR II-923 ........... 208–9 Tietosuojavaltuutettu v Satakunnan Markkinapörssi OY, Satamedia, Case C-73/07, [2008] ECR I-09831 .................................................................. 105
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TV10 SA v Commissariaat voor de Media, C-23/93, ECLI:EU:C:1994:
362, ............................................................................................................ 289 United Brands v Commission, Case 27/76 [1978] ECR 207 ............ 52, 102, 338 Van Binsbergen v Bestuur van de Bedrijfsvereniging, Case C-33/74, ECLI:EU:C:1974:131 ................................................................................ 289 Van den Bergh Foods, Case T-522/03 [2003] ECR II-04653 ............................ 91 Vanbraekl, Case C-368/98 [2001] ECR I-5382 ................................................ 138 Zhu and Chen, C-200/02, ECLI:EU:C:2004:639. ............................................ 289
FRANCE Booking.com, Autorité de la concurrence, Case 15-D-06 ....... 342, 351, 354, 362 Google et al. v Evermaps, Case No. 2009061231, Tribunal de Commerce de Paris (31 January 2012) .............................................................................. 59
GERMANY Booking.com, Bundeskartellamt Case B 9-121/13 .......... 342, 355, 358–9, 362–3 Bundesverband Deutscher Privatkliniken (BDPK)/ Landkreis Calw, Supreme Court Ref. 2 U 11/14 ................................................................................ 151 Google Inc. Case 92 O 5/14 Kart, Landgericht Berlin (19 February 2016) ..... 69 Google Inc. Case 408 HKO 36/13, Landgericht Hamburg (4 April 2013) ....... 59 Google/VG Media (Case B6-126/14) German Competition Authority (GCA)(8 September 2015) .......................................................................... 69 HRS, Bundeskartellamt Case B 9-66/10 ................. 342, 351–6, 358–9, 362, 365 HRS, Dusseldorf Higher Regional Court (OLG), VI – Kart. 1/14 (V) .......... 342, 365, 367 Orange-Book-Standard, 6 May 2009, Bundesgerichtshof, KZR 39/06 .......... 266, 268–9
ITALY Booking.com, Autorità Garante della Concorrenza e del Mercato, Case 1779 B ..................................................................................... 342, 351, 354 Ratiopharm/Pfizer Agcm Decision no. 23194 of 11 January 2012 ........... 280–82 Ratiopharm/Pfizer Consiglio di Stato, Decision no. 693 of 12 February 2014 ....................................................................................................... 281–2 Ratiopharm/Pfizer; Tar Lazio, Decision no. 7467 of 3 September 2012 ..................................................................................................... 280–82
SWEDEN Booking.com , Konkurrensverket, Case 596/2013 .................. 342, 351, 354, 356
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xx The roles of innovation in competition law analysis
UNITED KINGDOM Allen v Flood [1898] AC 1 ............................................................................... 274 Mayor of Bradford v Pickles [1895] AC 587 ................................................... 274 Streetmap.EU Ltd v Google Inc. et al. [2016] EWHC 253 (Ch), [2016] All ER (D) 129 (Feb) ................................................................................. 59 UK v Les Servier Laboratories [High Court of Justice, Chancery Division. Patents Court] [2011] EWHC 730 (Pat) .................................................. 155 Unwired Planet International v Huawei Technologies [2017] EWHC 711 (Pat) ........................................................................................................... 269
UNITED STATES Addamax Corporation v Open Software Foundation, Inc., 152 F.3d 40, 50 n.3 (1st Cir. 1998) ..................................................................................... 200 American Home Prods. Corp., Proposed Consent Agreement with Analysis to Aid Public Comment, 59 Fed. Reg. 60 ................................................ 201 Apple Inc and NeXT Software Inc v Motorola Inc (25 April 2014) 2012-1548, 1549 US Court of Appeals for the Federal Circuit .......... 261–2 Apple Inc and NeXT Software Inc v Motorola Inc and Motorola Mobility Inc (22 June 2012) No. 1:11-cv-08540 District Court for the Northern District of Illinois Eastern Division ..................................................... 261–2 Associated Press v United States, 326 US 1 (1945) ........................................ 208 Boise Cascade Corp. v FTC, 637 F2d 573 (9th Cir 1980) ............................... 52 Bosch (Robert Bosch GmbH), In the matter of (File No. 121 0081) FTC, Docket No. C-4377; ............................................................... 53, 57, 259–62 Continental TV v GTE Sylvania Inc, 433 US 36 (1977) ................................. 358 Credit Suisse Securities LLC v Billing, 551 US 264 (2007) ........................... 284 eBay v MercExchange, 547 US 388 (2006) ................................................. 248–9 E.I. du Pont de Nemours & Co. v FTC, 729 F.2d 128 (2d Cir. 1984) .............. 52 FTC v Actavis Inc 570 US 756 (2013) ........................................ 216, 238, 243–4 FTC v Cement Inst, 333 US 683 (1948) .......................................................... 259 FTC v Indiana Federation of Dentists, 476 U.S. 447, 454 (1986) ................... 52 FTC v RF Keppel & Bros, Inc, 291 US 304 (1934) ........................................ 259 FTC v Sperry & Hutchinson Co., 405 US 233 (1972) .............................. 52, 259 General Motors, In re 103 F.T.C. 374 (1984) .................................................. 200 General Motors, In re 116 F.T.C. 1276 (1993) ................................................ 200 Genzyme/ Novazyme, In the matter of, Docket c 4126 File no 0410083 (2005) .................................................................................... 188, 197, 206–7 Google Inc., In the matter of, FTC file 121-0120 (3 January 2013) ......... 260–62 Independent Service Organizations Antitrust Litigation, In re, 203 F.3d 1322 (Fed. Cir. 2000) ......................................................................................... 284 Intel Corporation, In the matter of (File No. 951 0028) FTC, Complaint of 8 June 1998, Docket No. 9288 ................................................................... 54
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Motorola Mobility LLC, and Google Inc., In the matter of (File No. 121 0120) FTC, Complaint of 24 July 2013, Docket No. C-4410 ....... 53–4, 56, 57–8, 74–6 Negotiated Data Solutions LLC, In the matter of (File No. 051 0094) FTC, Complaint of 23 September 2008, Docket No. C-4234 .............. 52–4, 57–8 Official Airline Guides, Inc v FTC, 630 F.2d 920, 927 (2d Cir. 1980) ............. 52 Rambus v FTC, 522 F.3d 456 ............................................................................. 54 Samsung/ Apple Third Party FTC’s Statement on the Public Interest in the matter of certain wireless communications devices. Inv. No. 337-TA-745 (6 June 2012) ................................................................... 262–3 Spectrum Sports, Inc v McQuillan, 506 US 447 (1993) .................................. 258 United States v American Express Co., 2015 WL 728563 .............................. 356 United States v Grinnell Corp, 384 US 563 (1966) ........................................ 258 Verizon Communications Inc v Law Offices of Curtis V Trinko LLP 540 US 398 (2004) ............................................................................ 43, 259, 284 Wright Med. Tech., Inc., Proposed Consent Agreement with Analysis to Aid Public Comment, 60 Fed. Reg. 460 ......................................................... 201
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Table of legislation EUROPEAN UNION art 104 ........................................ 370 art 106 .......................................... 61 art 106(1) ................................... 149 Treaties and Agreements art 106(2) ........................... 149, 158 art 107 .................................... 145–6 Agreement on a Unified Patent art 108 .................................... 145–6 Court 2013 [2013] OJ C 175/1 .................................. 253–4 art 109 ........................... 145–6, 149 Charter of Fundamental Rights ....... 82 art 114 .................................... 135–6 art 35 .................................... 140–41 art 168 ............................... 133, 141 art 51 ................................. 102, 125 art 168(1) ................................... 134 EC Treaty art 168(7) ............................... 133–4 art 82 ........................................ 52–3 art 169 .................................... 133–5 art 85 .......................................... 194 art 85(1) ..................................... 194 Directives art 85(3) ..................................... 194 European Patent Convention Directive 65/65/EEC of 26 January 1973 ................................... 251–2 1965 on the approximation of Treaty of the EU provisions laid down by Law, art 4 ............................................ 159 Regulation or Administrative Treaty of the Functioning of the EU Action relating to proprietary art 7 .............................................. 87 medicinal products [1965] art 8-16 ........................................ 87 OJ L22/369 ............... 103–4, 276 art 12 .......................................... 135 Directive 89/105/EEC of 21 art 12(2) ..................................... 135 December 1988 relating to the art 26 ................................. 135, 139 art 53(1) ..................................... 139 transparency of measures art 101 .......... 89–98, 145–6, 158–9, regulating the pricing of 194, 205, 208, 372–3 medicinal products for human art 101(1) ... 89–94, 90, 101–2, 342, use and their inclusion within the 349, 370 scope of national health art 101(3) .............. 90–91, 94–5, 97, insurance systems [1989] 99–100, 179, 202, 212, 224, OJ L 40/8 .............................. 136 342, 359–60, 367–73 Directive 93/42/EEC of 14 June 1993 art 102 ........ 51, 54, 74, 89, 98–105, concerning medical devices and 129, 145–6, 150, 158–9, 247, Directive 98/79/EC of the 258, 265–8, 280, 318–23, European Parliament and of the 331–2, 336–40 Council of 27 October 1998 on art 102(2)(d) .............................. 314 in vitro diagnostic medical art 102(a) ..................................... 53 devices [1993] OJ L 169/1 ... 136
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Directive 95/46/EC of the European Directive 2003/94/EC of 8 October
Parliament and of the Council of 2003 laying down the principles 24 October 1995 on the and guidelines of good protection of individuals with manufacturing practice in respect regard to the processing of of medicinal precuts for human personal data and on the free use and investigational medicinal movement of such data [1995] products for human use [2013] OJ L281/31 ................... 105, 137 OJ L 262/22 .......................... 136 art 6 ............................................ 108 Directive 2004/23/EC of the European art 6(1)(b) .................................. 112 Parliament and of the Council of art 6(1)(f) ................................... 116 31 March 2004 on setting art 7 ............................................ 109 standards of quality and safety art 7(e) ....................................... 113 for the donation of 31 March art 15 .......................................... 117 2004 on setting standards of Directive 98/44/EC of the European quality and safety for the Parliament and of the Council of donation, procurement, testing, 6 July 1998 on the legal processing, preservation, storage protection of biotechnological and distribution of human tissues inventions [1998] OJ L and cells [2004] OJ L 213/13 .................................... 136 102/48 ................................ 136–7 Directive 2001/20/EC of the European Directive 2004/48/EC of 29 April Parliament and of the Council of 2004 on the enforcement of 4 April 2001 on the intellectual property rights approximation of the laws, [2004] OJ L195/16 regulations and administrative art 1 ............................................ 252 provisions of the Member States art 3(2) ....................................... 252 relating to the implementation of art 9(1) ....................................... 252 good clinical practice in the art 11 .......................................... 252 conduct of clinical trials on art 12 ...................................... 252–3 medicinal products for human art 13 .......................................... 253 use [2001] OJ L 121/34 ....... 136 recital 7 ...................................... 252 Directive 2001/83/EC of the Directive 2009/138/EC of the European Parliament and of the European Parliament and of the Council of 6 November 2001 on the Community code relating to Council of 25 November 2009 medicinal products for human on the taking-up and pursuit of use [2001] OJ L 311/67 ....... 136 the business of Insurance and Directive 2002/98/EC of the European Reinsurance (Solvency II) Parliament and of the Council of [2009] OJ L 335/1 ................ 137 27 January 2003 setting Directive 2011/24/EU of the European standards of quality and safety Parliament and of the Council of for the collection, testing, 9 March 2011 on the application processing, storage and of patients’ rights in cross-border distribution of human blood and healthcare [2001] OJ L blood components and amending 88/45 ................................ 139–40 Directive 2001/83/EC [2003] art 3 ............................................ 140 OJ L 33/3 .............................. 136
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Directive 2013/55/EU of the European Regulation 833/2004 of the European
Parliament and of the Council of Parliament and the Council of 29 20 November 2013 amending April 2004 on the coordination Directive 2005/36/EC on the of social security systems recognition of professional [2004] OJ L 166/1 ................ 140 qualifications and Regulation Regulation 207/2009 on the European (EU) No 1024/2012 on Union trade mark [2009] OJ L administrative cooperation 78/1 through the Internal Market art 7 ............................................ 293 Information System entered into Regulation 987/2009 of the European force on 20 November 2013 Parliament and of the Council of [2013] OJ L 354/132 ............ 139 16 September 2009 laying down Directive 2014/40/EU of the European the procedure for implementing Parliament and of the Council of Regulation (EC) No 883/2004 on 3 April 2014 on the the coordination of the social approximation of the laws, security systems [2009] OJ L regulations and administrative 284/1 ...................................... 140 provisions of the Member States Regulation 1217/2010 of 14 concerning the manufacture, December 2010 on the presentation and sale of tobacco application of Article 101(3) of and related products and the Treaty on the Functioning of repealing Directive 2001/37/EC the European Union to certain [2014] OJ L 127/1 ................ 136 categories of research and development agreements, Regulations OJ 2010 L 335/36 ............. 202–3 art 3 ............................................ 203 Regulation 1612/68 on freedom of Regulation 330/2012 of 20 April 2010 movement for workers [1968] on the application of Article OJ L 257/2 101(3) of the Treaty of the art 7(2) ....................................... 289 Functioning of the European Regulation 1/2003 of 16 December Union to categories of vertical 2002 on the implementation of agreements [2010] OJ L the rules on competition laid 102/1 ...................................... 360 down in Articles 81 and 82 of Regulation 1215/2012 of 12 the Treaty [2003] OJ December 2012 on jurisdiction L1/1 ........................... 158–9, 264 and the recognition and art 2 ............................................ 359 enforcement of judgments in art 7 ............................................ 305 civil and commercial matters art 9 ............................................ 304 [2012] OJ L351/1 Regulation 139/2004 of 20 January art 5 ............................................ 253 2004 on the control of art 15 .......................................... 253 concentrations between art 24(4) ..................................... 253 undertakings [2004] OJ L24/1 art 35 .......................................... 253 art 1(2) ....................................... 303 art 62 .......................................... 253 art 3 ............................................ 304 art 63 .......................................... 253
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Regulation 2016/679 of 27 April recital 156 .................................. 108
2016, General Data Protection recital 159 .................................. 107 Regulation (GDPR) [2016] recital 162 .................................. 107 OJ L 119/1 .................... 105, 306 art 4(4) ....................................... 117 International Treaties art 4(5) ....................................... 107 art 4(7) ....................................... 109 Agreement on Trade-Related Aspects art 5(1) ............................... 106, 110 of Intellectual Property Rights art 5(1)(b) .......................... 108, 112 (TRIPS) 1994 art 5(1)(e) ................................... 108 art 5(2) ............................... 108, 110 art 2(1) ....................................... 249 art 5(b) ....................................... 109 art 8(2) ....................................... 265 art 6 ............................................ 109 art 39 .......................................... 171 art 6(1)(f) ........................... 109, 113 art 40(2) ............................. 249, 265 art 6(4) ......................... 112, 114–15 art 44(1) ..................................... 249 art 7(4) ....................................... 110 art 44(2) ..................................... 249 art 9 ............................................ 113 art 50 .......................................... 249 art 10 .......................................... 113 Paris Convention for the Protection art 11 .......................................... 107 of Industrial Property 1883 art 13 .................................... 118–19 art 4A ......................................... 248 art 13(1)(d) ................................ 110 Universal Declaration of Human art 14 ........................... 107, 118–19 Rights 1948 art 14(2)(b) ................................ 110 art 27 .......................................... 248 art 15 ........................... 107, 118–19 art 16 .......................................... 107 art 17 .......................................... 107 UNITED STATES art 18 .......................................... 107 art 20 .......................................... 126 Drug Price Competition and Patent art 21 .......................................... 107 art 22 ................. 106, 112, 117, 128 Term Restoration Act 1984 art 22(1) ..................................... 118 (Hatch-Waxman Act) ........... 225, art 22(2) ..................................... 118 238–9 art 22(3) ..................................... 118 Federal Trade Commission Act 1914 art 23 .......................................... 113 s 2 .............................................. 258 art 24 .......................................... 111 s 5 ........... 51–4, 59–60, 65–6, 74–5, art 24(3) ..................................... 112 258–9 art 36 .......................................... 111 s 45 ................................ 247, 258–9 art 37 .......................................... 111 s 45(a)(1) ..................................... 51 art 43 .......................................... 110 Hatch-Waxman Act 1984 ............. 225, art 89 .......................................... 112 238–9 art 89(1) ................................. 107–8 National Cooperative Research Act recital 26 .................................... 106 1984 .................... 189–90, 192–4 recital 71 .................................... 118 s 3 .............................................. 193 recital 75 .................................... 111 National Cooperative Research and recital 78 .................................... 110 Production Act 1993 ........ 193–5, recital 81 .................................... 110 197, 199–205, 207, 211 recital 89 .................................... 111 s 4301(a)(6) ... 193–5, 197, 199–205 recital 91 .................................... 111 s 4302 ........................................ 201
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xxvi The roles of innovation in competition law analysis
Patent Act ...................................... 249 Standards Development Organization
s 283 .......................................... 249 Advancement Act 2004 .... 197–8 Sherman Act 1890 Tariff Act 1930 s 2 .................................... 52, 258–9 s 337 ........................ 250–51, 262–3
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1. Innovation in competition law
analysis: making sense of on-going academic and policy debates Pieter Van Cleynenbreugel
1. INTRODUCTION Although it is widely believed that market economies characterised by undistorted competition contribute directly to innovation,1 the relation- ship between innovation and competition law remains mysterious. As a result, scholars have grappled with the notion of innovation and its place within the competition law analytical framework. Analyses have varied between claims that no place should be awarded to innovation in competition law analysis2 and proposals to develop or fine-tune new economic tests grounded directly in innovation-related arguments.3 In the same way, competition authorities seem to have either excluded different innovation-related testing frameworks or have – often cautiously – proposed a more innovation-focused analytical framework or theory of competitive harm. Confronted with that variety of approaches in covering the relationship between innovation and competition law analysis, one may be inclined to find it difficult to distinguish the forest from the trees throughout those debates. In an attempt at making sense of the different takes on the relationship between competition law analysis and innovation, this brief
1 See in general, G. M. Peter Swann, The Economics of Innovation. An introduction (Edward Elgar Publishing, Cheltenham, 2009), 8–20. 2 Pablo Ibanez Colomo, ‘Restrictions on innovation in EU competition law’, European Law Review (2016) 41 (2), 201–219. 3 Nicolas Petit, ‘Innovation Competition, Unilateral Effects and Merger Control Policy’, working paper available at https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3113077; Thibault Schrepel, ‘Predatory Innovation: The Defin- ite Need for Legal Recognition’, available at https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2997586.
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introductory chapter undertakes to offer a framework categorising the
different competition law and innovation approaches into four different yet complementary analytical boxes, prior to categorising the different chapters in this volume into one of those boxes. In order to develop this framework, section 2 of this chapter briefly restates the basics derived from economic analysis that determine or could determine roles granted to innovation in competition law analysis. Section 3 actually distin- guishes four different approaches towards competition law and innov- ation, proposing a table composed of four different yet complementary analytical boxes able to capture those varieties in scholarship. Building upon that analysis, section 4 categorises the different chapters in this volume within one of the four identified competition law and innovation boxes. It should be clear at the outset that the purpose of this chapter is not to propose a way forward in competition law and innovation analysis. It rather aims to offer a brief overview of different scholarly approaches linking innovation to competition law in order better to frame, understand and compare the roles of innovation in competition law analysis and the contributions the different chapters included in this volume make to that analysis. As such, the chapter is above all to be read as an introduction to both the body of scholarship dedicated to competition law and its relationship to innovation in general and to the different and varied chapters included in this volume.
2. INNOVATION, COMPETITIVE MARKETS AND
COMPETITION LAW: BETWEEN SCHUMPETER AND ARROW Innovation in and of itself remains an open-ended notion. In essence, it encompasses the commercialisation of newly invented or upgraded products (product innovation) or production and distribution processes (process innovation). Such innovation can take place in a most disruptive way, creating an entirely new market for a new product or can be rather incremental, changing the dynamics on an existing market.4 What is clear, however, is that no matter what definition of innovation one adheres to, it has the potential to shake up markets or to at least change
4 See European Commission, Competition policy brief, EU merger control and innovation, April 2016, available at http://ec.europa.eu/competition/ publications/cpb/2016/2016_001_en.pdf, p. 2.
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4 The roles of innovation in competition law analysis
the competitive dynamics within those markets. The relationship between
competitive markets and innovation has therefore been the subject of vigorous debate among economists. In that particular context, discussions on the relationship between competitive markets and innovation almost always also start from the contrast between so-called Schumpeterian and Arrowian approaches towards innovation in competitive markets. According to the teachings of Joseph Schumpeter, product innovation is guaranteed best by less competition than more.5 In line with his ideas on creative destruction and the replacement of old products with com- pletely new ones at some point in time, Schumpeter argues that less competition provides more incentives to a business to engage in product innovation, as the incumbent business may be afraid that its products will be replaced by a newer and better product that would result in the creation of a new market and the destruction of the old product market. As the European Commission summarised Schumpeter’s thoughts in 2016:
Less competition increases the post-innovation rewards for the innovator,
which in turn will increase the incentives to engage in research and develop- ment (R&D). Even if there is little price competition in the market, innovation competition from firms seeking to take over the leading supplier’s role (competition for the market) will goad the current market leader to invest in innovation to stay ahead, or else lose its market position to rivals.6
Product competition, or at least the risk of it, stimulates innovation in that
understanding. Kenneth Arrow, on the other hand, argues that vigorous price com- petition rather than product competition serves as a means to stimulate innovation. In his opinion, the more pressure businesses feel with regard to their pricing decisions because of competitors also trying to capture demand, the more incentives to innovate will remain with the businesses concerned.7 Again according to the European Commission:
In a competitive environment, a newly invented product will not cannibalise
the firm’s own profit as much as it would under a less competitive market structure. In a competitive market, an invention will allow the inventor to gain
5 Joseph A. Schumpeter, Capitalism, Socialism and Democracy (Routledge, Abingdon, 2010), 82–83. 6 European Commission, n. 4, p. 1 (emphasis in original). 7 Kenneth Arrow, ‘Economic Welfare and the Allocation of Resources for Invention’, RAND Paper 1959, available at https://www.rand.org/pubs/papers/ P1856.html, pp. 15–20.
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sales from competitors and will therefore be applied to a higher output.
Innovation incentives depend not on post-innovation profits per se but on the difference between post-innovation and pre-innovation rents. For these rea- sons, less competition in the market would reduce the incentives to innovate.8
As such, the threat of competition in itself incentivises businesses to
engage in more innovative practices, both in terms of disruptive or incremental product innovation and in terms of less intensive process innovation, in which new production or distribution processes are commercialised. Both approaches towards competitive markets and innovation are not mutually exclusive, as economist Carl Shapiro has demonstrated.9 Indeed, both Schumpeter and Arrow essentially agree on the fact that markets need to be contestable, meaning that they need to enable new entrants to gain market access and to use that market access to contest incumbent businesses. In addition, in order to stimulate innovation, synergies between complementary products or services have to be recognised and realised, as bringing together such synergetic products may increase the likeliness of innovations to take shape in the future.10 Competition law plays a key role in that regard, as it offers tools to take action against market foreclosure and the competitive harm resulting directly or indirectly therefrom and to justify synergies that complemen- tary products or services can bring in an attempt to stimulate innovation. At the same time, both positions also agree that businesses need to be able to capture the value of their innovation and to benefit from the competitive advantage obtained from their innovative actions. They have to be able to appropriate the value of their innovation.11 To do so, the recognition of certain types of intellectual property rights protection and ways to keep relying on their innovations are to be stimulated in that regard. Again, competition law can play a clear role in allowing such rights to be recognised and exercised within a framework also favouring undistorted competition.
8 European Commission, n. 4, p. 2 (emphasis in original). 9 Carl Shapiro, ‘Competition and Innovation. Did Arrow Hit the Bull’s Eye?’, in Josh Lerner and Scott Stern, The Rate and Direction of Inventive Activity Revisited (NBER 2012), 361–410. 10 European Commission, n. 4, p. 2. 11 See in a particular context, Dirk Auer, ‘Appropriability and the European Commission’s Android Investigation’, Columbia Journal of European Law (2017) 23, 647–680.
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6 The roles of innovation in competition law analysis
It is clear from the foregoing basic overview that innovation as such
can benefit from a competition law framework that ensures the contest- ability of markets, acknowledges the potential to appropriate certain benefits and stimulates synergies between complementary products. In that understanding, competition law serves above all as an instrument to enable and facilitate innovation in markets, either at the level of individual products or at the level of competitive markets as a whole. At the same time, competition law should serve as an instrument to act against innovations that have as a consequence the foreclosure – and diminished contestability – of markets or the abuse of appropriation tools acknowledged by law. On a whole, competition law should thus be considered an instrument making possible innovation competition both in specific product markets and beyond.
3. DEFINING THE ROLES OF INNOVATION IN
COMPETITION LAW ANALYSIS: A FRAMEWORK It follows from the previous section that competition law can serve as a tool to allow for innovations to take place and as a means to protect against certain excesses of innovation. Although it is clear that com- petition law can play a role in the innovative process, a question that has not been answered in economic studies concerns the extent to which competition law should or could incorporate directly or indirectly innovation-structured arguments into its analytical framework. In essence, competition law targets certain practices that harm undistorted competition. As such, it operates on the basis of a ‘theory of harm’ that allows enforcement authorities and businesses to have some kind of certainty as to what practices are considered anticompetitive and what practices can be justified by virtue of offsetting procompetitive or efficiency-oriented items. Although competition law scholarship has largely centred on such theories of harm and has related them to innovation arguments, no singularly clear picture emerges from an even superficial survey of the practices and writings of competition authorities and scholars working in the field. At a general level of competition law and innovation scholarship, studies on the relationship between innov- ation and competition law focus on whether innovation-related arguments could be integrated in those theories of harm. Two different positions can be distinguished in that respect, differentiating the extent to which innovation-related concerns are to be included directly or indirectly in the applicable theory of harm underlying the application of competition law in a given jurisdiction.
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A first group of policy and scholarship documents suggests that
innovation remains a value exogenous or external to competition law. Competition law focuses on market behaviour and the structure of the market and innovation can be considered a consequence directly flowing from that structure. At the same time, innovation as such is not a value directly protected by competition law itself. As such, protection or enabling of innovation cannot be invoked as a justification to otherwise anticompetitive types of behaviour or as a way to determine the presence or not of a restriction on competition. To the extent that innovation is considered as an exogenous value to competition, one may either consider innovation as a positive value, worthy of protection under competition law, or as a negative value, bringing new problems and issues that require remedial action within the scope of competition law.
+ An example of the first tendency would seem to be the European
Commission’s willingness to refer to the impact of anticompetitive behaviour on innovation as an illustration of competitive harm caused by such behaviour.12 In doing so, the European Commission does not consider innovation to be the only or even key core value requiring protection, but rather a policy value that could be at stake in a supplementary way when defining or condemning anti- competitive practices.13 As such, innovation is a value that deserves protection and that is considered as a positive thing to happen in a market environment. At the same time, however, such innovation does not need to be part of the analytical framework of competition law in itself. The mere presence of a limit on the ability of businesses to compete is considered also to have repercussions on the ability of undertakings to innovate. From that point of view, protecting competition indirectly also means protecting innovation. At the same time, however, the competition law framework does not in itself incorporate innovation-related arguments directly into the assessment of anticompetitive behaviour. + In a similar fashion, competition law is also confronted with innovation as a negative exogenous value requiring to be addressed partially through competition law. The emergence of big data is a key example of this tendency. Big data result in the ability of certain businesses to collect, use and determine pricing decisions
12 See Communication from the Commission – Guidelines on the applic- ability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements [2011] OJ C11/1, para. 27. 13 See for that argument, Colomo, n. 2.
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Columns Design XML Ltd / Job: Nihoul-The_roles_of_innovation / Division: 01-chapter1_final /Pg. Position: 6 / Date: 28/8 Another random document with no related content on Scribd: asked a portly old man if we could drive in, as it looked like rain. “Yes, and quick too,” he said, hobbling ahead of us. We were scarcely under cover before the cloud burst, and such a gust of wind came as it seemed must have overturned our phaeton if we had been exposed to it. We threw our wraps over our heads and ran to the house, where we were kindly received, amid the banging of doors and crackling of glass. The rain fell in sheets and the lightning flashes almost blinded us, but in an hour, perhaps less, we were on our way again, dry and peaceful, the sun shining and the clean, washed roads and prostrate limbs of trees simply reminding us there had been a shower. We spent the night at Penacook, formerly Fisherville. By this time we had decided we would deviate from our straight course to Mt. Washington just a bit, only a few miles, and spend a night at Weirs. We remembered very well our last drive from Weirs to Penacook via Tilton and Franklin, and thought to take the same course this time. Franklin came to hand all right, but where was Tilton? We were sure we knew the way, but were equally sure Tilton should have put in an appearance. We inquired, and were much surprised when told we had taken a wrong turn, or failed, rather, to take the right one seven miles back. We had not only lost our way to Weirs, but we were off our course to Mt. Washington, and there is no such thing as going “across lots” in that part of the country. Not knowing what to do, we said we would have luncheon, and take time to accept the situation. At this point we discovered that our diary was left twenty miles back at Penacook. Our first dilemma paled before this, for that diary means something; indeed, it means everything. Without it, life would not be worth living—even were it possible. We must have it. But how should we get it? We went back to the man in the garden, and he told us a train would go down directly, and we could get back the same afternoon, he thought. We considered it only a moment, for having lost our way and the diary, we feared losing each other or Charlie next. We returned to the carriage, unharnessed Charlie, tied him to a telegraph pole, then took our luncheon. After a good rest our way seemed clear, and we started on towards Bristol, resolved that we would make no more plans, but give ourselves up to the guidance of Fate. We find in the “jotting column” for that day, “A criss-cross day.” Our honest intention to go straight to Mt. Washington was overthrown, and we found ourselves at night castaways on the shores of Newfound Lake, while our letters awaited us at Weirs, and the diary was speeding its way to Plymouth, in response to a telegram. Eleven miles driving the next morning brought us to the Pemigewasset House, Plymouth, just in season to telephone our mail from Weirs on the one o’clock train. We felt like embracing the express boy who handed us the precious sealed package from Penacook. Thanks and a quarter seemed a poor expression of our real feelings. Perfect happiness restored, where should we go to enjoy it over Sunday? Fate suggested Rumney, and we quickly assented, remembering its delightful quiet, and the lovely drive of eight miles. We could go across from Plymouth to Centre Harbor, and thence to Conway, as we had planned, but we would not. We had been defeated and determined to stay so. The drive along the valley was as lovely as ever, and a look of pleasant recognition was on the face of our hostess at the “Stinson House” in Rumney. After supper we took our sketch book and strolled through the meadow to the river bank, quite artist like. We spent the next day quietly in our room, reading and writing, until towards night, then drove two miles to call on a lady who had found us out through the Transcript, and assured us a welcome if we ever drove to Rumney again. We had a delightful hour with our new friends, and left them with a promise to return in the morning for a few days. It would fill the Transcript if we were to tell you all we enjoyed in that little visit, the adventures, pedestrian excursions, camping on islands, nights in caves and barns, related by our friends, which made us long to explore for ourselves the region about Rumney. Some of the Transcript readers may remember a letter two years ago (Feb. 15, 1884), from one of a party of six who braved Franconia Notch in winter. We read it with great interest at the time, and wondered from which house in Rumney so brave and jolly a party started. Our curiosity was more than gratified by finding ourselves guests in the hospitable home, and by meeting several of the party, two of whom arrived from Boston while we were there. One morning we bowled in the loft of the ideal barn, and one rainy afternoon we had lessons in perspective. Miss D. proved a good instructor, and we thought we were fair pupils as we talked glibly of the station point, point of sight, base and horizontal lines, and the vanishing point, and reproduced Mrs. Q.’s desk by rule. We reluctantly left our friends to their camping preparations, while we traveled over once more the route of the sleighing party. This was our fourth drive through the Pemigewasset Valley, but its beauty is ever new. We took two hours’ rest at the entrance of a cathedral-like archway of trees, which now adorns our parlor in “oils.” We tried to sketch properly, but, alas! all our points were “vanishing points” without Miss D. at hand, and we returned to the ways of ignorance. We spent the night at “Tuttle’s,” and heard from the cheery old lady and “Priscilla” the story of the sleighing party who were refused shelter at the Flume House, and though half-perished with cold had to drive back seven miles to spend the night with them. She told us how sorry she was for them, and how she built a roaring fire in the old kitchen fireplace, and filled the warming-pans for them. We imagined how good they must have felt buried in the hot feathers that cold night. We did not visit the Flume this time, but just paid our respects to the Old Man, took breath and a sketch at Echo Lake, and gathered mosses as we walked up and down the steep places through the Notch. We spent the night in Bethlehem, and enjoyed a superb sunset. We went several miles out of our way the next day to see the Cherry Mountain slide, which occurred the week before. We were introduced to the proprietor of the ruined farm, caressed the beautiful horse, pitied the once fine cow, which now had scarcely a whole bone in her body, and learned many interesting details from the daughter, a bright girl. It was a forlorn spectacle, and a striking contrast to the drive we had after retracing our steps to Whitefield. Charlie had traveled far enough for such a hot day, but we knew the Lancaster post office had something for us, and we could not wait, so started leisurely, promising to help poor Charlie all we could. He understood us well enough to stop at the foot of every hill, and at the top of very steep ones, to let us get out and walk. We were repaid a thousand times by the magnificent views of the Franconia range until we reached the highest point, when the glories north opened before us. We were now facing new scenes for the first time since we left home, and yet we felt at home in Lancaster, for another Lancaster is our near neighbor. The postmaster looked relieved to find owners for his surplus mail, and as he handed out the seventh letter with a look of having finished his task, we said, “Is that all?” for one was missing. “I think that will do for once,” he said. Two weeks later we sent him a card and the missing document came safely to hand down in Maine. Fate knows we like to drive north, and led us onward. We followed the Connecticut through the lovely valleys, crossing it and driving in Vermont one afternoon, enjoying the new country until we had left the White Mountains sixty miles behind us. We then turned directly east, and ten miles along the Mohawk River brought us to the entrance of Dixville Notch. We were bewildered by its beauty, grander even than the Franconia Notch. We reached the Dix House, the only habitation in that wild spot, at three o’clock, and as soon as we could register our names we hastened away for Table Rock, a narrow peak 800 feet above the meadow in front of the Dix House and 3150 feet above the sea. It was the roughest climb we ever attempted—almost perpendicular, and everything we took hold of seemed to give way. Once at the top we looked aghast at the narrow path, hardly four feet wide, then with open arms rushed across and embraced the flagstaff on Table Rock. It seemed as if the foundation was rocking beneath us, but after a little time we went back and forth confidently. The air was clear and the view very fine. Just below the summit, a tiny path, with scarcely a foothold, led to an ice cave, and we refreshed ourselves by looking into its cooling depths. When safely at the foot again we cut some spruce walking sticks for souvenirs and stripped the bark as we walked back to the Dix House. It rained the next day and the mountains were visible through the mist only now and then. We sketched Table Rock and the Notch profile in instalments, reading and writing between times, and enjoyed the very lonesomeness of the place. The clouds made way for the moon at night, but we were disheartened next morning to find they had settled down closer than ever, although the rain was over. We could not wait another day, and packed up, hoping it would all come out right, as many times before. Our wildest hopes were more than realized when we entered the Notch, and found it clear ahead. The clouds had driven through and settled about the meadows. It is two miles through the Notch, and we walked nearly all the way. Everything is moss-grown and marked with decay. The Notch has its Old Man, its Flume and Cascades, and our exclamations burst forth at every turn. Such mosses, such high, ragged bluffs, such babbling brooks, and all so fresh after the rain! Was ever anything so beautiful? Suddenly we found ourselves in open space again, and driving along the Clear Stream meadows, we passed the little enclosure where are the graves of the first two inhabitants of this lonely region. Six or eight miles more brought us to Errol Dam, where we left Charlie in good care, while we took a five hours’ trip on a tiny mail steamer. We thought we were to be the only passengers, but a young woman with an invalid brother, bound for the Rangeley Lakes, came at the last moment. We steamed along the Androscoggin River until within a half mile of Lake Umbagog, then turned into the Magalloway. In course of time the little Parmachenee pushed up against a bank and we were landed in the glaring sun, to wait while the mail was carried two or three miles, and the two men had dinner. Fortunately we had a luncheon with us, or we should have had to content ourselves with crackers and molasses, and “bean suasion” with the brother and sister, at the only house in sight. We were back at Errol Dam at four o’clock, and as we paid the four dollars for our little trip the man said, “Too much, but we have to live out of you folks.” There is a stage route from Errol Dam to Bethel, Me., but we preferred to follow the Androscoggin, so that eventful day finished off with a fourteen-miles drive through the forest, over a road badly washed, with the river rushing madly along, as if bent on its own destruction, then taking breath for awhile and looking placid as the Connecticut, but directly in a turmoil again as the rocks obstructed its course. Just as the sun dropped, we emerged from the forest into a broad plain, and four houses, widely separated, were in sight—the first habitations we had seen since we left Errol Dam. We knew one of them must be Chandler’s, where we had been directed for the night. It was a lonesome place, and we did not feel quite comfortable when we found ourselves in a room on the first floor, having four windows and two doors, with no means of fastening any of them, and a “transient” man in the room adjoining. I am not sure but the Denver ladies’ “loft” and “boy” might not have seemed preferable, only we had a revolver. Suffice it to say, our experience since we left Dixville Notch in the morning had been sufficiently fatiguing to insure rare sleep, in spite of open doors, barking dogs and heavy breathing of the “transient,” and after a very palatable breakfast we took our leave, grateful for such good quarters in such a benighted country. We drove thirty miles that day, following the Androscoggin all the way. Berlin Falls and the Alpine Cascades, along the way, are worth going miles to see. We camped at noon between Berlin Falls and Gorham and had a visit from five boys of various nationalities, some with berries and some with empty pails. They sat down on the ground with us and showed much interest in our operations, jabbering in their several dialects. “I know what she’s doing: she’s making them mountains,” one whispered. We looked quite like traveling parties we have seen, with Charlie munching his oats, and we asked them if they did not think we were gypsies. “No, indeed, we never thought such a thing; we thought you were ladies from Gorham.” With this compliment we drove on toward Gorham, dropped our mail, and then turned directly eastward with the Androscoggin, to enjoy for the first time the drive from Gorham to Bethel, called the North Conway drive of that region. We spent a night at Shelburne, almost as nice as Rumney, and another at Bethel. With much regret we now parted from the Androscoggin, and aimed for the Saco at Fryeburg. The heat was so intense that we stopped, ten miles sooner than we intended, at Lovell, driving the next day to Hiram, and the next to Hollis, so full of delightful recollections of the wonderful hospitality of stranger friends a few years ago. That charmed circle is now broken by death and change, but a welcome was ready for us from those who had heard about our visit there, and we were at home at once. There were many summer guests, but a cosy little attic room, full of quaint things, was left for us. The Saco runs just before the house, and we took the little walk to the “Indian’s Cellar” where the river rushes through the narrow gorge, and it charmed us as much as before. We not only felt at home in Hollis, but really at home, for all between us and home was familiar, whatever route we might take. We eagerly drove towards Saco, for that was our next mail point, and the letters that came direct, and those that followed us around the country, came to hand there. We talked over their newsy contents as we drove miles on Old Orchard Beach that afternoon. We spent the night at Bay View, and part of the next day, for the thunder showers followed one after another so closely, we could not get an order to the stable, and time for a dry start in between. We finally ordered Charlie harnessed after one shower, and brought to the door after the next. This plan worked too well, for after all our hasty packing off, sides on, boot up, all ready for a deluge, it never rained a drop. We called at the Saco post office again, and then took a road we thought would take us by the house of a friend in Kennebunkport, but it proved to be a lonely road with neither friends nor foes, and before we knew it Kennebunkport was left one side, and we were well on our way to Kennebunk. Despite our muddy and generally demoralized condition, we called on friends there before going to the hotel for the night. We drove thirty-seven miles the next day, through Wells, York and Portsmouth, to Hampton. Ten miles the next morning took us to Newburyport, where we stopped over Sunday for a visit. All was well at home, so we thought we would still follow the ocean, as this was a sort of water trip. (We had followed the Merrimac, Pemigewasset, Connecticut, Mohawk, Androscoggin and Saco rivers.) The old towns, Newbury, Rowley, Ipswich and Essex, are always interesting, and Cape Ann is so delightful we could not resist the temptation to “round” it again, and have another look at Pigeon Cove, one of the loveliest places we have ever seen. We drove on through Gloucester to Rockport on the Cape, and there passed the night. We were hardly out of sight of the hotel in the morning before it began to rain, and the thunder rumbled among the rocks as if it would unearth them. We did not enjoy it, and just as it reached a point unbearable, and the rain was coming in white sheets, we saw a private stable and begged the privilege of driving in. We were urged to go into the house, but declined, thinking the shower would soon be over. For a full half hour we sat there, rejoicing after each flash that we still lived, when a man appeared and insisted we should go in, as the rain would last another hour, and it would be better for our horse to have his dinner. We declined dinner for ourselves, but the delicious milk the good wife brought us was very refreshing, and if we had not accepted that boiled rice, with big plums and real cream after their dinner, it would have been the mistake of our lives. Soon after noon the sun came out in full glory, and we left our kind host and hostess with hearty thanks, the only return they would accept. Everything was fresh after the shower, and the roads were clean as floors. Full of enthusiasm we drove on and by some mistake, before we knew it, Cape Ann was “rounded” without a glimpse of the “pretty part” of Pigeon Cove. We had no time to retrace our way, so left Pigeon Cove, and Annisquam friends, for the next time, and hurried on through Gloucester, anticipating the wonderfully beautiful drive of twenty miles before us. At Magnolia we inquired for friends, and were directed to the cottage struck by lightning that morning. The waves dashed angrily on the rocks at Magnolia Point, and the surf at Manchester-by-the-Sea would have held us entranced for hours. It was the time for driving and we met all the fine turnouts and jaunty village carts as we went through Beverly Farms, with the tangled slopes and bewitching little paths or cultivated terraces with broad avenues, the stately entrances assuring you that both paths and avenues lead to some princely “cottage.” A night at Beverly was followed by a crooked wandering through Salem and Marblehead Neck, then on through Swampscott and Lynn to Maplewood, where we spent an hour or two, then drove into Boston. The city was draped in memory of General Grant. We drove through the principal streets down town, then over Beacon Hill and through Commonwealth avenue to the Mill-dam, winding up our day’s drive of nearly forty miles by pulling over Corey Hill on our way to Brighton, where we gave Charlie and ourselves a day’s rest. As we were packing our traps into the phaeton for the last time on this trip, for we usually drive the forty miles from Boston, or vicinity, to Leominster in one day, our friend gave the phaeton a little shake and said, “This will wear out some day; you must have driven two thousand miles in it.” “Oh! yes,” we said, and referring to that encyclopedic diary, exclaimed, “Why, we have driven over five thousand miles!” He complimented its endurance, but we thought of the “one hoss shay.” It was a bright day, and the familiar roads seemed pleasant as we drove along through Newton, Watertown and Stow, leaving Lexington and Concord one side this time. We found a very pretty spot for our last “camp,” and there we squared our accounts, named our journey and pressed a bright bit of blackberry vine for the sketchbook. The afternoon drive was even more familiar. We let Charlie take his own time, and did not reach home until eight o’clock, and finding everybody and everything just as we left them nearly five weeks before, gradually all that had come between began to seem like one long dream. “Summer Gleanings” lies on our table, and we often take it up and live over again the pleasant days recorded there in “timely jottings,” crude little sketches, and pretty wayside flowers, and then we just take a peep into the possibilities of the future by turning over a leaf and reading— “To one who has been long in city pent,”
and think what a nice beginning that will be for our fifteenth “annual.” CHAPTER VII. THE CATSKILLS, LAKE GEORGE AND GREEN MOUNTAINS. In answer to the oft-repeated queries, “Did you have your journey last summer?” and “Where did you go?” we reply, “Oh, yes; we had a delightful journey. We were away four weeks and drove five hundred and seventy-five miles. We went all through Berkshire, up the Hudson, among the Catskills, then on to Albany, Saratoga, Lake George, Lake Champlain and home over the Green Mountains.” Lovers of brevity, people who have no time or fondness for details, and those who care more for the remotest point reached than how we got there, will stop here. Those of more leisurely inclination, who would enjoy our zigzagging course, so senseless to the practical mind, and would not object to walking up a hill, fording a stream or camping by the wayside, we cordially invite to go with us through some of the experiences of our fifteenth annual drive. We were all ready to go on the Fourth of July, but Charlie does not like the customary demonstrations of that day, and for several years he has been permitted to celebrate his Independence in his stall. There were three Fourth of Julys this year, and we waited patiently until Independence was fully declared. All being quiet on Tuesday, the sixth, we made ready, and at a fairly early hour in the morning everything had found its own place in the phaeton and we were off. As usual, we had made no plans, but our thoughts had traveled Maineward, until at the last moment the Catskills were suggested. The heat which often lingers about the Fourth was at its height, and the thought of Princeton’s bracing air was so refreshing we gladly started in that direction. We drove leisurely, taking in the pretty views and gathering flowers, camped by the roadside two hours at noon, and then on through Princeton to Rutland. We visited that pretty town three years ago, when the Mauschopauge House was being built, and we resolved then to spend a night some time under its roof. It is finely located, commanding extensive views, and is in every way a charming place to spend a scorching summer night. The cool breezes blowing through our room, the glorious sunset, and the one lone rocket, the very last of the Fourth, that shot up seemingly from a dense forest, two miles away, and impressed us more than a whole program of Boston pyrotechnics, calling forth the remark, “How much more we enjoy a little than we do a great deal,” to which a lady, kindly entertaining us, replied, “Oh, you are too young to have learned that,” all these are fresh in our memory. Just as we were leaving in the morning, our kindly lady introduced us to a stately looking Boston lady, and told her of our habit of driving about the country. “Oh,” she says, “that is charming. I do not like woman’s rights, but this is only a bit of Boston independence.” It was hot after we left breezy Rutland, and we drove the twelve miles to North Brookfield very leisurely, taking our lunch before we visited our friends there, and at once declaring our determination to leave before supper, as it was too hot to be any trouble to anybody. We sat in the house and we sat in the barn, but there was no comfort anywhere. Late in the afternoon we resisted the protests, but not the strawberries, and started off for the eleven miles to Ware. Our dread of the heat was all wasted, for we had a very pleasant drive, but, when we were once in that roasting, scorching hotel, we almost wished we had not been so considerate of our friends. Twenty-five miles driving the next day, stopping at the comfortable hotel in Belchertown for dinner, brought us to Northampton. We drove about its lovely streets an hour before going to the hotel, and passed the evening with friends, who took us through Smith College grounds by moonlight, on our way back to the hotel. The luxuries of Northampton offset the discomforts of Ware, and we were filled with the atmosphere which pervades the country all about, through Mr. Chadwick’s glowing descriptions, as we followed along the Mill River, marking the traces of the disaster on our way to Williamsburg. Up, up we went, until we found ourselves on the threshold of Mr. Chadwick’s summer home, in Chesterfield. He took us out into the field to show us the fine view, with a glimpse of old Greylock in the distance. We were on the heights here, and went down hill for a while, but it was not long before we were climbing again, and after six miles of down and up we sought refuge for the night in Worthington. There was rain and a decided change in the weather that night, and a fire was essential to comfort during the cheerless early morning hours. We took the opportunity to rest Charlie and write letters, and the ten miles’ drive to Hinsdale in the afternoon was quite pleasant. It was refreshing for a change to be chilly, rather than hot and dusty. At Peru, six miles from Worthington, we reached the point where the waters divide between the Connecticut and the Housatonic. The night at Hinsdale was without special interest, but the drive from there to Stockbridge will never be forgotten. Could it be that only two days before we were dissolving with the heat, and now we needed our warmest wraps. The dust was laid, all Nature fresh, Charlie was at his best, and away we sped towards the lovely Berkshire region, with its fine roads, beautiful residences, cultivated estates and the superb views along the valley of the Housatonic, in the grand old towns of Pittsfield, Lenox, Lee and Stockbridge. Mr. Plumb, the well- known proprietor of the quaint old inn in Stockbridge, remembered our visit there eleven years ago, and asked us if we found our way to New York that time. He said he remembered telling us if we had found our way so far, we should find no difficulty in crossing the State line. Somehow, we were afraid of the New York State line then, but we have so far overcome it, that, after we crossed this year, we felt so much at home that the revolver was packed away a whole day, for the first time since we have carried it. Any Berkshire book will tell you all about Mr. Plumb’s inn, the Sedgwick burial place, Jonathan Edwards and all the rest, and we will go on, leaving enough to talk hours about. We cannot go through Great Barrington without lingering a bit, however, giving a thought to Bryant and the lovely poems he wrote there, before we are diverted by the wonderful doings of Mrs. Mark Hopkins. An imposing structure puzzled us. “What is it?” we asked a man. “It is a mystery,” he said. We afterward were told that it was designed for Mrs. Hopkins’s private residence at present, but would be devoted to art some time in the future. We cannot vouch for the latter statement, but we can for the magnificence of the edifice, as well as for the church with its wonderful Roosevelt organ and royal parsonage, largely due to Mrs. Hopkins’s liberal hand. Many travel by private car, but Mrs. Hopkins has a private railroad, and when she wishes to visit her San Francisco home, her palace on wheels is ordered to her door, as ordinary mortals call a cab. Sheffield had even more attractions than Great Barrington and Mrs. Hopkins, for there we got home letters. Next comes Salisbury, and now we are in Connecticut. We spent the night at an attractive hotel in Lake Village, and fancied we were at Lake Winnipiseogee, it was so like Hotel Weirs. Perhaps you think we forgot we were going to the Catskills. Oh, no; but we had not been able to decide whether we would go to West Point and drive up the Hudson, or to Albany and drive down, so we concluded to “do” Berkshire until our course was revealed. The turnpike to Poughkeepsie was suggested, and as we had reached the southern limit of the so-called Berkshire region, it met our favor, and we went to Sharon, then crossed the New York State line, which is no more formidable than visible. Still there was a difference. It seemed as if we were among foreigners, but the courteous answers to inquiries and manifest kindly feeling won us at once. Turnpikes are too public for a wayside camp, and as there was no hotel at hand, and Charlie must have rest, we asked permission of a farmer to drive into a little cosy corner where we could all be very comfortable. He would leave his dinner, although we protested, and helped unharness Charlie, then he brought us milk and luscious cherries, and when dinner was over, his wife came and invited Charlie to eat some of the nice grass in her front yard. We led him to his feast, and had a very pleasant chat with her, while he reveled in New York hospitality. This was in Armenia. From there we drove over the mountain to Washington Hollow, where we had a comfortable night in a spacious, old-fashioned, homelike hotel. The twelve miles to Poughkeepsie were very pleasant, and after we had nearly shaken our lives out over the rough pavement in search of a guidebook of the Catskills, we were ready for dinner and a two- hours’ rest at a hotel. The afternoon drive of seventeen miles to Rhinebeck on the old post road from New York to Albany was fine. This was our first drive along the Hudson; but were it not for the occasional glimpses of the farther shore through the wooded grounds, we might have fancied ourselves driving through Beverly- Farms-by-the-Sea. The stately entrances and lodges of these grand old estates, with their shaded drives, towards the turrets and towers we could see in the distance, looked almost familiar to us. It rained very hard during the night at Rhinebeck and until ten o’clock in the morning. While waiting for the final shower, we discussed our route for the day, and somehow inclination got the better of wisdom, and we left the old post road for one which we were told would take us near the river. When shall we learn that river roads are rarely near the river? We hope we learned it for life that day, for repentance set in early, and has not ceased yet, because of our compassion for Charlie. The roads grew heavier every hour, and the twenty-six miles seemed endless. We scarcely saw the river, and the outline of the Catskills was all there was to divert us. We will touch as briefly as possible on the dinner at Tivoli. “Driving up the Hudson must be charming,” our friends wrote us with envy, but we forgot its charms when we were placed at the table which the last members of the family were just leaving, and the “boiled dish” was served. We were near the river, however, for which we had sacrificed comfort for the day. We survived the ordeal, smothering our smiles at the misery our folly had brought us, and with renewed avowals that we would never be enticed from a straightforward course by a river road again, we went on our wretched way. Thunder clouds gathered and broke over the Catskills, but the grumbling thunder was all that crossed the river to us. The fact that somehow the river was to be crossed, and exactly how we knew not, did not make us any happier. You may remember Charlie is particular about ferries. Is there no end to this dragging through the mud, we thought, as the showers threatened, the night came on and no one was near to tell us whether we were right or wrong, when we came to turn after turn in the road. We were about lost in mud and despair, when we heard a steam whistle, and came suddenly upon express and freight trains, a railway station and ferryboat landing all in a huddle. Charlie’s ears were up and he needed all our attention. We drove as near as he was willing to go, then went to inquire the next step. No old scows this time, happily, but a regular ferryboat, and the ferryman has a way of whispering confidentially to timid horses which wins them at once, so we were soon safely landed into the darkness and rain on the other side. We spent the night in Catskill Village, and gave the evening up to study of the ins and outs of the Catskills. The heavy rain all night and half the morning prepared more mud for us, and we were five hours driving twelve miles. The wheels were one solid mass of clay mud, and we amused ourselves watching it as it reluctantly rolled off. We took directions for the old Catskill Mountain House, but, luckily for Charlie, we guessed wrong at some turn where there was no guide-board, or place to inquire, and brought up at the Sunny Slope House at the foot of the mountain instead of at the top. We walked two miles after supper and were tempted to stay over a day and walk up the four-mile path to the famous Kaaterskill House, but it was a beautiful day to go through Kaaterskill Clove, and it seemed best to make sure of it. It was up hill about four miles, and as interesting as Franconia and Dixville notches, with its Fawn’s Leap, Profile, Grotto, Cascades and superb views. All this we should have missed if we had gone over the mountain. We dined at Tannersville and fancied we were in Jerusalem, for every hotel in the place was full of Jews. The afternoon drive along the valley was very restful, after the morning’s rough climb. We were now in a country entirely new to us, and we little dreamed that the Schoharie Kill or Creek driving would eclipse the Hudson. We had at last found a river road which followed the river. The shore scenery was simply exquisite. Miles of hills—mountains we should call them—with cultivated grain fields even to the summit. Surely we had never seen anything more lovely. The roads were not like the post road on the Hudson; indeed, they were the worst roads we ever encountered. Annual overflows undo the repairs which are rarely made, and in many places the highway is simply the bed which the creek has deserted. At home we improve roads by clearing the stones from them, but there they improve them by dumping a cartload of stones into them. We learned this fact by hearing an enterprising citizen declare he would do it himself, if the town authorities did not attend to their duty, and we can testify to the truth of it, having been over the roads. Our hotel experiences were new, too. We spent one night at Lexington, and when Charlie was brought to the door and all was ready for our departure we noticed something wrong about the harness. Investigation proved that things were decidedly mixed at the stable, and probably a part of Charlie’s new harness had gone to Hunter, ten miles back, after the skating rink frolic of the night before. We had suspected our choice of hotels for that night was not a happy one, but the landlord did his best. He despatched a man to Hunter, and took our bags back to our room, saying we should stay till the next day at his expense. We resumed our reading and writing, the stray harness returned that night, and early next morning we shook the dust of Lexington from us and were on our way again. We drove twenty-six miles that day over the crazy roads close by the Schoharie all the way. We had been hemmed in for some time, with the creek on one side and overhanging rocks on the other, when we came suddenly to a ford, the first we had chanced to come across in our travels, and we feared it might be more objectionable to Charlie than a ferry, for he is really afraid of water. Only a few rods to the right was a leaping, foaming cascade seventy-five or one hundred feet high, which was a real terror to him, but he seemed to take in the situation and to see at once, as we did, that escape or retreat was impossible and the stream must be crossed. Oh, how we dreaded it! but we drew up the reins with a cheering word to him and in he plunged, pulling steadily through in spite of his fright. “Well, that is over, what next?” we wondered. We wanted to drive to Middlebury for the night, but a fatherly old man we saw on the road said, “I wouldn’t drive eight miles more tonight if I were you; it will make it late, and you better stop at Breakabean.” We asked the meaning of the unique name and were told it signified rushes, but we saw none. Things were rushing, however, at the speck of a hotel, which was undergoing general repairs and cleaning. The cabinet organ was in the middle of the sitting-room and everything socially clustered around it. Out of two little rooms up stairs we managed to get things convenient. To be sure we had to pin up a shawl for a screen in our dressing-room, and a few such little things, but we assured our hostess we could be comfortable and should not be annoyed by the brass band of native talent which would practise in the little dancing-hall close by our rooms. When we went down to supper all was peaceful; the organ had retired to its corner and things were “picked up” generally. There were two ways we could take the next day, but to avoid the mountain we were strongly advised to take the ford. We objected, but yielded at last, being assured it was by far our best course. If it was the best we are heartily glad we took it, and we got through the morning safely, but we are never going there again. We reached the ford in time, but had we not known it was a ford by directions given and unmistakable signs, we should as soon have thought of driving into the sea. The water was high, current strong—how deep we knew not—and it was quite a distance across. Charlie was sensible as before. We tucked our wraps in close, for where roads are made of rocks you cannot expect a smooth-running ford, and in we plunged again. Directly the water was over the hubs, and we felt as if it would reach the carriage top before we could get across. We held our breath in the spot where the current was strongest, but Charlie pulled steadily and all went well. We understood our course would be level after the ford. The man must have forgotten the tow-path. From the ford we went right up on to the side of a cliff, and for a mile or more we were on the narrowest road we ever drove on, with the cliff fifty to one hundred feet straight up on our left, and a hundred feet down on our right was the river, or Schoharie Creek, with nothing to hinder our being there at short notice, not even a stick for protection. When we got to a rational road we inquired if we had been right, and were told “Yes, if you came by the tow-path; you would have had to ford three times if you had kept the valley.” We told you at the outset that the Schoharie Valley is very beautiful. It lies now like a picture in our memory, and despite rocks, fords and tow-paths, we were very reluctant to leave it, but we were aiming for Saratoga, and at Schoharie we were advised to go by the way of Albany. It was the week of the bi-centennial celebration, and nothing but Albany was thought of, so we fell in with the multitude, and with a last look at Schoharie, turned east. The country was dull by contrast for a while, but became more interesting as we drew nearer the Hudson. We spent the night at Knowersville, and after everybody else had boarded the crowded excursion train to the Capital we leisurely started off via the plank road. Every grocer’s wagon or coal cart we met had a bit of ribbon, if no more, in honor of the occasion; and miles before we reached the city, strips of bunting adorned the humble dwellings. The city itself was one blaze of beauty. The orange, generously mixed with the red, white and blue, made the general effect extremely brilliant. We drove through all the principal streets and parks, dodging the processions—which were endless— with their bands and gay paraphernalia, to say nothing of the “trade” equipages, which suggested that all the business of Albany was turned into the streets. We went all over the Capitol building and had a fine view of the surrounding country from its upper rooms; then, feeling we had “done” the bi-centennial to our satisfaction, we drove nine miles up the Hudson to Cohoes for the night. When the porter brought our bags in, he said, with evident delight, “He’s given you the best rooms in the house,” and they were very nice; but luxuries are not always comforts, and we have not forgotten sitting bolt upright on the top of a marble table, with our book held high, in order to get near enough to the gaslight to read. Everybody we saw the next day was dressed up and bound for Albany, for the President was to be there, but we were impatient for our letters at Saratoga and went on. The twenty-five miles was easily accomplished, and we found a large mail. In the evening we strolled about, enjoyed the fireworks in Congress Park, and talked over our plans for the next day. We had seen all the attractions about Saratoga in previous visits, except Mt. McGregor. We had thought to let Charlie rest, and go by rail, but were told we could drive up without the least difficulty, and that it was right on our way to Glen’s Falls. This seemed our best course, and we tried it, only to find, when too late, that the road had been neglected since the railroad was built, and was in a very rough condition. One led Charlie up and down the mountain, and the other walked behind to pick up any bags or wraps which might be jolted out on the way. The view from the hotel and the Grant Cottage is very pretty, and if we had been free from encumbrance, we should have enjoyed the walk up and down very much. As it was, we could only laugh at ourselves and say, “Poor Charlie!” We had been to Mt. McGregor, however, and that is something, and it chanced to be the anniversary of General Grant’s death. We spent the night at Glen’s Falls, and tried in vain to find some one who could tell us how to go home over the Green Mountains. We knew the way from Lake Champlain, having driven up that way several years ago, and finally concluded the longest way round might be the pleasantest way home. We had been to Lake George, and that was one reason we wanted to go again; so off we skipped over the nine miles’ plank road, and sat for two hours on the shore in front of the Fort William Henry House writing letters, which ought to have been inspired, for we dipped our pens in the waters of the beautiful lake. When we went to the stable for Charlie, we found an old man who knew all about the Green Mountains, and if we had seen him at Glen’s Falls we should have been on our direct way home. Our last plan was too pleasant to repent of now, and we took directions towards Lake Champlain. We had to retrace our way on the plank road several miles, then go across country to Fort Ann, a distance of sixteen miles. It is perplexing when you leave the main roads, there are so many ways of going across, and no two people direct you the same, which makes you sure the road you did not take would have been better. At Fort Ann we had comforts without luxuries, in the homeliest little old-fashioned hotel, and stayed until the next afternoon to give Charlie a rest, then drove twelve miles to Whitehall, where we had a good-looking hotel and no comforts. There were things enough, but they needed the touch of a woman’s hand. It must have been a man who hung the looking-glass behind the bed. We rearranged, however, and borrowed a table and chair from an open room near by, and got along very well. These were trifles compared with the pouring rain, which was making mud out of the clayey soil which the Catskills could hardly compete with. We almost repented, but would not turn back when only fourteen miles were between us and friends. We think the men who held a consultation as to our best way to Benson must have conspired against us, or they never would have sent us by the Bay road. The rain ceased, but the mud, the slippery hills and the heathenish roads every way! We turned and twisted, stopped at every farmer’s door to ask if we could be right, and more than once got the most discouraging of all answers, “Yes, you _can_ go that way.” The spinning of a top seems as near straight as that drive did. I know we could not do it again, and I am surer yet we shall not try. When, at last, we struck the stage road, things seemed more rational, and Charlie’s ears became very expressive. As we drove into Benson he tore along and nearly leaped a ditch in his haste to turn into our friend’s stable, where Cousin Charlie fed him so lavishly with oats seven years ago. No one seemed to know exactly how we got there, but our welcome was none the less hearty. Now we were all right and needed no directions, for from this point our way over the Green Mountains was familiar, and after a short visit we turned towards home, anticipating every bit of the one hundred and fifty miles’ drive. At Fairhaven we lunched with another cousin while Charlie rested, and then had a most charming drive to Rutland. We now follow the line of the Central Vermont and Cheshire Railroad quite closely all the way to Fitchburg; but, fine as the scenery is by rail, one gets hardly a hint of its beauty by the carriage road. We rode seven miles on the steps of a car when returning from Saratoga later in the season, hoping for a glimpse, at least, of the beautiful gap between Ludlow and Chester, which compares favorably with Dixville Notch or Kaaterskill Clove, but a good coating of dust and cinders was the only reward. For more than a mile the carriage road winds through the gorge, the mountains high and very close on either side, and apparently without an opening.
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