On 1 May 2004 EC and indeed British competition law went through a sea change:
(1) The 40-year regime of notifying all agreements "which have as their object or effect the prevention, restriction or distortion of competition within the common market" to the European Commission pursuant to reg 17/62 was abolished by the so-called "Modernizing Regulation" (Council Regulation (EC) No 1/2003 of 16 December 2002
on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty); and
(2) The Commission adopted the Technology Transfer Block Exemption (Council Regulation (EC) No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements).
A block exemption under the post modernization regulation is not quite the same as one made under Reg 17/62. For a start there is no longer any need to notify either to the Commission for exemption from art 81 (1) or to the Office of Fair Trading for exemption from the Chapter I prohibition under the Competition Act 1998. Consequently, there is no longer any need to spell out white clauses. It is enough just to specify the black clauses, what our US friends call "no-nos" such as price fixing as in art 4 (1) (a) of the block exemption. The other big difference is that national competition authorities can withdraw the benefits of the block exemption within their territories if necessary.
I have updated and transposed a couple of old articles which may help:
- The Enterprise Act 2002 - the provisions that affect IP & Technology; and
- the slides presented by Steven Preece of the OFT to a seminar which my old chambers' boardroom organized in December 2003 entitled "Competition law and IPR – recent developments A View from the Office of Fair Trading".
Steven's presentation was masterly and I am sorry to say most of the Manchester solicitors who said they were coming backed off. Those who did turn up were from Addleshaws, Berg & Co and Hill Dicks which says something about those bods.
It is worth mentioning that Patrick Cantrill of Walker Morris Solicitors has promised to give a talk entitled ‘A review of the Technology Transfer Block Exemption’ at Fox Hayes Best Practice Suite, 118 North Street, Leeds, LS2 7AN, between 18:00 and 20:00. That suggests they hope to have moved by then so this is a good opportunity for me to wish Debbie and Liz (who are both good mates of mine) the best of luck. Not much of a Christmas for them so it seems.