The freedom to conduct business and the right to property: The EU technology transfer block exemption regulation and the relationship between intellectual property and competition law

Abstract

The Charter of Fundamental Rights is a rights catalogue for a modern market economy. It recognises the freedom to conduct business, Article 16, as well as the right to property, Article 17. The second paragraph of Article 17 states that intellectual property shall be protected. The history of the European Union (EU) shows that competition law promoting especially competition across the EU is of primary concern. In this context, there are interesting relations between property rights and the right to conduct business, especially with regard to intellectual property. This article analyses the Technology Transfer Block Exemption Regulation and its accompanying guidelines, assessing to what extent it encourages innovation and maintains effective competition and how it stands up against other like-minded pieces of legislation drafted across the world. The comparison will first show the similarities and then the differences between the approach herein that has been developed and followed in the EU, US, and Japan, among other countries. It will be analysed to what extent this approach towards IPR and Competition law is coherent and how things may possibly stand in the future in this regard. Finally, the authors will attempt to answer these questions: how meaningful and essential is this interface between IPR and competition law, and has the TTBER in particular served its purpose? Are the freedom to conduct business and the protection of the right to property well protected?