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Liability for Artificial Intelligence
Law,

A new proposal to address liabilities caused by the AI

by iusblog14 November 2022no comment

The European Commission proposed new guidelines[1] on 28 September that would require developers of artificial intelligence-powered software and goods to compensate victims of their creations.

In 2020, the chamber had urged[2] the Commission to implement regulations to ensure victims of harmful AI can get compensation, notably requesting that creators, providers, and users of high-risk autonomous AI could be held legally liable for accidental injury. However, the EU executive opted for a “pragmatic” approach that is weaker than this severe liability regime, arguing that the facts did not “justify” such a regime.

AI Liability Directive

The new AI Liability Directive would make it simpler to claim for compensation when a person or organization is injured or suffers damages as a result of drones, robots, or software such as automated hiring algorithms powered by artificial intelligence.

The proposed legislation is the most recent attempt by European officials to govern AI and establish a global standard for controlling the burgeoning technology. It comes at a time when the EU is in the midst of negotiating the AI Act,[3] the world’s first bill to restrict high-risk uses of AI, such as facial recognition, “social score” systems, and AI-enhanced software for immigration and social benefits.

Under the proposed new AI Liability Directive, the presumption of causality will only apply if claimants satisfy three core conditions: first, that the fault of an AI system provider or user has been demonstrated or at least presumed to be so by a court; second, that it can be considered reasonably likely, based on the circumstances of the case, that the fault has influenced the output produced by the AI system or the failure of the AI system to produce an output; and third, that the presumption of causality Some of the strategies that DeepMind’s AlphaGo used to defeat a human were ones that expert Go players had never considered. This exemplifies both the benefits and challenges presented by artificial intelligence. We may not be able to comprehend the reasoning behind an AI’s decision or how one thing led to another as humans. This is one of the reasons why AI liability laws may be required to make a policy judgment based on an assumption. Therefore, subject to certain conditions and in limited circumstances, national courts would be required to presume, for the purposes of applying liability rules to a claim for damages, that the output produced by the AI system (or the failure of the AI system to produce an output) was caused by, for instance, the AI provider’s fault.

For instance, claimants would need to demonstrate that providers or users of high-risk AI systems had not complied with the obligations imposed by the AI Act. For providers, these responsibilities include training and testing of data sets, system oversight, as well as system precision and resiliency. For users, who, under the AI Act, may be an organization or a consumer, the obligations include monitoring or utilizing the AI system in accordance with the accompanying instructions.

To aid claimants in establishing blame, the proposed AI liability regulation permits courts to force providers or users of high-risk AI systems to preserve and disclose material pertaining to those systems. The proposed legislation further encourages disclosure by allowing the presumption of causality to be rebutted when a provider or user can demonstrate that adequate evidence and expertise are reasonably accessible for the claimant to establish the causal link. In the event of a malfunction with a conventional product, it may be clearly apparent what went wrong. Nonetheless, this may not be the case with AI. A court can force a provider of a high-risk AI system (as defined by the EU AI Act) to disclose relevant and necessary evidence concerning their product under certain conditions. In restricted instances, third parties may also submit requests.

Product Liability Directive

The Commission proposed the AI Liability Directive alongside a separate, but related, proposal for a new Product Liability Directive.[4]

Under the proposed Product Liability Directive, AI systems and AI-enabled items would be classified as “products” and consequently subject to the liability framework of the directive. As with any other product, compensation is available when defective AI causes harm, and the affected party is not required to prove manufacturer negligence. In addition, producers may be held accountable for modifications they make to items they have previously introduced to the market (i.e. when these changes are triggered by software updates or machine learning). In some instances, a person who modifies a product that has been placed on the market or put into service may be regarded the product’s manufacturer and consequently accountable for any resulting damages. Other parties, such as importers, authorised representatives, fulfilling service providers, and distributors, may be held accountable for faulty products created outside the EU or when the producer cannot be identified.

In addition, the plan makes it clear that not only hardware makers but also software providers and providers of digital services, such as a navigation service in an autonomous vehicle, might be held accountable.

In addition, the burden of proof will be decreased when the court determines that a claimant will have trouble showing a fault or the causal relationship between the defect and the loss due to technical or scientific complexity (though the person sued can contest this). This proposal links the planned Product Liability Directive with the AI Liability Directive by shifting the burden of evidence.

Finally, claim thresholds and compensation level ceilings are eliminated. Under existing regulations, in order for a claim to be considered, the harm caused by a defective product must be at least 500 euros, and Member States may place a cap on the producer’s total culpability for damages resulting in death or personal injury (this amount cannot be lower than EUR 70 million).

The need for further implementation

Despite the transmission of essential information, it can be exceedingly difficult to show fault in complex systems, which is one of the major critiques leveled against the planned AILD. Especially given that certain AI systems behave autonomously and have functions that are so complicated that their outputs cannot be simply explained. This challenge relates to the ‘black box’ algorithm problem that develops when the complexities of an AI system make it difficult to comprehend the input that leads to a certain output.

While the proposed AILD cites autonomy as a barrier to understanding the system in its Recitals 3, 27, and 28, it offers little to aid injured parties in establishing a presumption of cause. An injured party still has a heavy burden of proof under the AILD, from providing evidence in support of the plausibility of the claim (Article 3(1)) to identifying non-compliance with AIA requirements (Article 4(1)(a)) and demonstrating a connection between the action of the AI system and the damage sustained (Article 4(1)(c)). It may also be difficult to demonstrate noncompliance with the proposed AIA’s rules. For example, it may be difficult to demonstrate that the datasets utilized in the creation of an AI system, or the accuracy levels of a given system are insufficient. Therefore, the proposed AILD provides very minimal procedural convenience for aggrieved parties at best. More must be done to improve the effectiveness of the recourse accessible to victims of AI-caused harm.

Using the updated PLD’s defect-based remedy, which requires no proof of wrongdoing, is one strategy for addressing this issue. Article 4(6) of the PLD stipulates that compensation may only be sought in the event of material damage. It means that AI systems used in, for example, credit-scoring by any financial institution that could hurt persons in a non-physical manner cannot be challenged on the basis of being flawed. To collect compensation, the injured party would need to demonstrate fault through the AILD. The Deputy Director of the European Consumer Organization (BEUC), Ursula Pachl, has already expressed this worry when discussing the draft directives.[5] BEUC is an umbrella consumer group that unites 46 independent consumer organizations from 32 countries and has advocated for years for an update to EU liability laws to account for the rising applications of artificial intelligence and to guarantee that consumer protections laws are not outrun. In its view, the EU’s proposed policy package falls short of the more comprehensive reform package it advocated for. It consists of modifications to the existing Product Liability Directive (PLD) so that it covers software and AI systems (among other changes); and a new AI Liability Directive (AILD) that aims to address a broader range of potential harms stemming from automation. In contrast to traditional product liability regulations, if a consumer is hurt by an AI service provider, they will be required to prove that the service provider was at fault. Given the opaqueness and complexity of AI systems, these characteristics will make it impossible for consumers to exercise their claim to compensation.

In this context, the Commission’s approach is more advantageous for developers, some of whom opposed stringent liability for non-material damages during the proposal development process.[6] In addition to this barrier, the PLD requires claimants to demonstrate the likelihood that injury was caused by the system’s failure in order to utilize the presumption of defectiveness (Article 9). This raises questions concerning the likelihood criterion that a claimant must achieve, particularly when a given system is difficult to comprehend.

A month ago, the U.K.’s data protection watchdog issued a blanket[7] warning against pseudoscientific AI systems that claim to perform ’emotional analysis,’ urging that such technology is not used for anything other than pure entertainment. This is illustrative of the types of AI-driven harms and risks that may be driving demands for robust liability protections. In the public sector, a Dutch court ruled[8] in 2020 that an algorithmic evaluation of social security claimants’ welfare risk violated human rights law. In recent years, the United Nations has also issued a warning[9] regarding the hazards of automating public service delivery to human rights. In addition, the employment of ‘blackbox’ AI systems by US courts to make sentence decisions, which opaquely bake in bias and discrimination, has been a crime against humanity for decades.

In conclusion, the proposed AI liability directions of the Commission largely facilitate the gathering of information regarding AI systems in order to prove culpability. In a sense, this codifies the transparency requirement for AI systems, which is also included in the proposed AIA. However, while doing so, the proposed liability directives saddle claimants with difficult obstacles to surmount, such as having to demonstrate blame or presumptions of defectiveness and causality, as well as the connection between the harm and the defect or fault, as outlined in the AILD and PLD. The Commission’s proposals are in the beginning stages of the legislative process and will likely undergo a number of adjustments prior to their final adoption. Moreover, possible changes to the proposed AIA could also affect the execution of the proposed liability guidelines, as the directives depend on the AIA’s definitions and standards. The legislative measures to establish AI liability are a significant step in the right direction towards successfully regulating AI. However, it is still essential to exercise caution in regard to the intricacies of AI systems, especially when the objective is to safeguard wounded parties.

Sources

  1. https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5807 ↑
  2. https://www.europarl.europa.eu/doceo/document/TA-9-2020-0276_EN.html ↑
  3. https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2021/0106(COD)&l=en ↑
  4. https://single-market-economy.ec.europa.eu/document/3193da9a-cecb-44ad-9a9c-7b6b23220bcd_en ↑
  5. https://www.euractiv.com/section/digital/podcast/the-new-liability-rules-for-ai/ ↑
  6. https://www.ccianet.org/wp-content/uploads/2022/08/2022.08.24-Joint-Industry-Letter-on-the-PLD-and-AI-Directive.pdf ↑
  7. https://ico.org.uk/about-the-ico/media-centre/news-and-blogs/2022/10/immature-biometric-technologies-could-be-discriminating-against-people-says-ico-in-warning-to-organisations/ ↑
  8. https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2020:1878 ↑
  9. https://www.ohchr.org/en/statements/2018/11/statement-visit-united-kingdom-professor-philip-alston-united-nations-special?LangID=E&NewsID=23881 ↑

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Financial Law, Law,

Digital Service Act approved by the European Parliament: new features on online intermediaries

by iusblog15 September 2022no comment

The European Parliament has recently passed the Digital Services Act[1], a regulation that replaces and novates the previous liability regime for information society service providers, consisting of the E-commerce Directive EC Directive 2000/31[2]. This contribution will analyze the main novelties and the continuities between the old and the new regimes.

European DSA (Digital Service Act)

European DSA (Digital Service Act)

Introduction

5 July represents a very important milestone in the roadmap of European digital regulation. In fact, this is the date on which the European Parliament approved the Digital Services Act (DSA), presented by the Commission in December 2020 and on which political agreement had already been reached on April 23, 2022.

This regulation’s stated objective is to contribute to the proper functioning of the internal market for intermediary services by establishing harmonized rules for a safe, predictable, and reliable online environment that facilitates innovation and in which the fundamental rights enshrined in the European Charter of Fundamental Rights, including the principle of consumer protection, are effectively protected.

In other words, it aims to redefine the rules applicable to online platforms by amending the Directive 31/2000, the so-called ‘E-commerce Directive’ and the main regulatory reference with regard to “provider liability’ or “secondary liability’. Indeed, the digital transformation and the increased use of digital services have given rise to new risks and challenges for individual service recipients, for businesses, and for society as a whole, hence the need to revisit the previous regulatory framework, now more than 20 years old.

Main novelties

The new regulatory framework applies to ‘information society services’, i.e. entities offering services at a distance, by electronic means, at the request of a recipient, ‘normally for remuneration’.

The overall architecture of the E-commerce Directive is preserved, but new rules on transparency, disclosure requirements, and accountability are adopted, primarily reflecting existing case law. The choice of regulation rather than directive as the form for the new legislation is a significant continuity solution. The direct applicability of the DSA is anticipated to help eliminate disparities between national E-commerce Directive transpositions.

However, the responsibility exemption for providers engaged in mere conduit, caching, and hosting activities remains preserved. This exemption, which focuses on hosting providers, is based on the condition that the provider of such an information society service is not liable for data maintained at the recipient’s request. All of the above, if the provider lacks actual knowledge of illegal activity or illegal content and, with respect to claims for damages, is unaware of facts or circumstances from which the illegal activity or illegal content is apparent; and, upon acquiring such knowledge or awareness, acts expeditiously to remove or disable access to the illegal content.

Similarly, the absence of a general obligation to monitor the platform for user activity is maintained, but certain exceptions are added. In addition, the DSA introduces a sort of “Good Samaritan” language to highlight that intermediaries are permitted to conduct bona fide voluntary investigations or other efforts aimed at finding and deleting illegal content without the risk of losing exemptions for that reason alone.

In addition to replicating the above exemption framework, the Digital Services Act imposes:

1. due diligence obligations for some specific categories of intermediary service providers.

2. new rules for implementation, enforcement, cooperation and coordination between Member States on digital services.

Perhaps the most significant novelty is the introduction of a ‘scaled’ discipline with four categories of providers and a progressive increase in the obligations, proportionate to the influence played, and responsibilities placed on the platform due to belonging to one or the other of the specified categories. These obligations are summarized here in the Table below.[3]

The categories would be intermediary services, hosting (e.g. cloud), online platform (e.g. social media) and very large platforms.

Intermediary services

 Hosting
services		 Online
platforms

Very large
platforms
Transparency measure for the online platform Transparency Reports

X

X

X

X
Requirements on terms of service that take into account fundamental rights

X

X

X

X
Notification, intervention and obligation to provide information to users

X

X

X
Transparency of user-facing online advertising

X

X
Transparency of recommendation systems

X
Supervision structure to deal with the complexity of the online space Cooperation with national authorities following orders

X

X

X

X
Contact points and, if necessary, legal representative

X

X

X

X
Complaint, redress and out-of-court dispute resolution mechanism

X

X
External and independent audit, internal compliance function and public accountability

X
Cooperation in response to crises

X
Measures against illegal goods, services, or content online Trusted flaggers

X

X
Measures against abusive service and counter-notification

X

X
Special obligations for marketplaces, e.g. verification of credentials of third-party providers (‘KYBC’), compliance by design, random checks.

X

X
Reporting offences

X

X
Risk Management Obligations

X

X
Codes of Conduct

X
Access by researchers and authorities to key data Sharing data with authorities and researchers

X

The establishment of new national authorities to oversee the DSA’s implementation is an additional innovation of note. In Chapter IV of the proposal, the procedural structure of this body is outlined. This individual is known as the Digital Services Coordinator, and he or she will be responsible, in each Member State, for overseeing the precise application of the DSA with respect to the platforms that have their main establishment in that Member State. The Digital Services Coordinator[4] will have three powers: investigative; enforcement, such as the power to order the cessation of violations, to impose corrective measures or interim measures aimed at avoiding the risk of serious harm; and the power to impound platforms that violate the DSA.

Finally, where the previous measures prove ineffective, coordinators also have the power to:

  1. to require the adoption of an action plan setting out the measures necessary to bring the infringement to an end and to ensure that the provider takes such measures, and to report on the measures taken
  2. to request the competent judicial authorities of that Member State to order the temporary restriction of access of the recipients of the service affected by the infringement.

Finally, platforms may also be sanctioned for submitting incorrect, incomplete or misleading information, as well as for failing to reply or rectify the same information, and for failing to submit to inspections. In these cases, however, penalties may not exceed 1 per cent of annual income or turnover (Article 42(3)).

Next steps

After the European Parliament adopted the DSA at first reading in July 2022, the text must be approved by the Council of the European Union. The DSA will be signed by the Presidents of both institutions and published in the Official Journal following acceptance by the Council. Then, twenty days following its publication in the Official Journal, it will enter into force.

With the exception of the responsibilities for big online platforms and large online search engines, which will apply four months after their designation, the DSA will be directly applicable throughout the EU after 15 months or on 1 January 2024, whichever is later.[5]

  1. https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package ↑
  2. https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32000L0031 ↑
  3. The Digital Services Act: An Analysis of Its Ethical, Legal, and Social Implications <https://www.researchgate.net/publication/357803324_The_Digital_Services_Act_An_Analysis_of_Its_Ethical_Legal_and_Social_Implications> ↑
  4. https://www.lawinsider.com/dictionary/digital-services-coordinator-of-establishment ↑
  5. https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2545 ↑

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ntf, token, law, legal, droit, légal, cryptos, cryptocurrencies, news,
Intelectual Property Law, Law,

The problems with NTF and intelectual property

by iusblog9 October 2021

NTF Intelectual property

You may have heard the word “blockchain” in the previous several years. Blockchain technology has established itself as an innovative record-keeping system, most notably serving as the foundation for the Bitcoin cryptocurrency. The most unique aspect of blockchain is its decentralized nature: it is not controlled by any single individual or organization. It is transparent in the sense that the ledgers are seen by everyone (if you know where to look). Blockchain technology is applicable to a wide variety of applications and is not restricted to cryptocurrencies. Non-fungible tokens (NFTs) are the most recent high-profile example of this nascent technology’s extensive applicability. NFTs are claimed to be immutable once “minted” (the Non-fungible token field’s term for “made”), because the information once placed on the blockchain is permanent and irrevocable.

NFTs are now sweeping the globe, as sports memorabilia firms and art auction houses use them to maximize the value of digital assets. In the first quarter of 2021, NFT sales hit $2 billion, with roughly twice as many buyers as vendors. For example, musicians, artists, and publishers have benefited from NFTs in order to commercialize their works and protect their intellectual property rights. We examine the intellectual property law implications of NFTs and related advancements in this paper.

NFTs are a global sensation.

Three weeks ago, fashion designer Karl Lagerfeld launched the first “non-fungible tokens” (NFTs). To begin, a black and white NFT figurine, which the internet site The Dematerialized sold in an edition of 777 for 77 euros each. A second, gleaming metallic NFT figurine by Lagerfeld, limited to 77 pieces, sold for 177 euros each.

The more costly version sold out in 33.77 seconds; the less expensive version took 49.09 minutes to sell out, Marjorie Hernandez, co-founder of The Dematerialized, disclosed during her presentation. The website where the NFTs were sold received traffic from all around the world. Sixteen percent are from the United States, 39 percent are from Europe, and 45 percent are from other countries. “Interest in the Karl Lagerfeld NFTs is international,” Hernandez continued. It extends the brand’s traditional marketing channels and targets new demographics, particularly younger generations.

How may NFTs be used to the world of art? Digital art is connected to a non-fungible token (NFT), which is produced online and then traded on a variety of exchanges. NFTs have had two significant consequences. To begin, they have lent an air of ‘authenticity’ to digital art. Second, they’ve established a potentially valuable online platform for digital artists to share works in a new genre of performative art. Because NFTs are one-of-a-kind tokens, they lend an air of authenticity to digital art in an age of copy-and-paste. This sense of ‘authenticity’ is encoded by NFTs.

According to a Deloitte survey on digital media trends, 87% of Gen Z consumers report playing video games on their cellphones, gaming consoles, or PCs on a weekly basis. Additionally, this generation is expected to prefer playing video games to watching video entertainment by a factor of more than two. The resulting blurring of the lines between younger consumers’ physical selves and virtual gamified avatars is ideal for ‘tokenisation’ – a unit of data stored on a digital ledger, or blockchain, that enables the trading and ownership of supply-constrained luxury collectibles, whether in conjunction with a physical purchase or exclusively online. The collaboration between digital sneaker brand RTFKT Studios and artist FEWOCiOUS led in a USD 3.1 million sale on non-fungible token (NFT) marketplace Nifty Gateway in under seven minutes. Each digital sneaker is paired with a physical counterpart – the ability for marketers to optimize their supply chains by selling a digital version of a coveted product while the consumer waits for the physical version is revolutionary.

The multiplicity of NFT structures

Why all the hipe? What are NFTs and what purpose do they serve in the metaverse? Finally, what contribution does new technology provide to the realm of fashion? Because one thing is certain: the Lagerfeld NFTs are only the latest example of a new technological adaption that is currently en favor, particularly among high-fashion brands: Burberry, Balenciaga, Gucci, and Louis Vuitton are all experimenting in this new arena. Digital fashion creates an entirely new sphere of action for fashion firms. They can sell their fashion not just in the physical world, but also via NFTs – particularly in the gaming world. Clothing also plays a growing role in this area. Players can build personal avatars, shop, attend fashion shows, interact with one another, and even own land and real estate in Metaverses. The possibilities are virtually limitless. In contrast to the majority of social media platforms today, a metaverse is a collective virtual space that is typically decentralized and frequently built on blockchains, for example, to safeguard one’s own money.

NFTs can be simply JPEG files. These non-fungible tokens are akin to digital certificates of validity that are often secured using blockchain technology and hence impenetrable to tampering. NFTs originate in the arts and gaming industries. Only in March of this year, Christie’s sold a photograph by artist Beeple for 69 million euros, making it the world’s most expensive JPEG file to date.

NFTs are a technique of tokenizing an asset, with a token representing a digital unit of value on a blockchain. These tokens can be used to represent a range of items and are subject to a variety of rules. The nature of a token is determined by the standard (a collection of rules agreed upon by developers) to which it is subjected. The ERC-20 standard is frequently used for fungible (not unique and thus divisible) tokens on the Ethereum blockchain, while the ERC-721 standard is frequently used for non-fungible (unique) tokens.

What does this mean legally?

Due to the non-fungibility of NFTs, a new distribution mechanism for intellectual property monetization has emerged. Given some of the unique characteristics of NFTs, intellectual property owners’ intellectual property protection and licensing strategies must be rethought. As NFTs gain popularity, businesses and creators should incorporate NFT-specific intellectual property protections into their intellectual property protection plans. Due to the unique characteristics of NFTs, numerous new issues apply when licensing, assigning, or transferring intellectual property rights. Additionally, NFT creators should be aware of potential infringement risks when utilizing third-party intellectual property and should consider protecting their original inventions with intellectual property protection.

However, the utility of NFTs in terms of intellectual property (IP) rights appears to be far less persuasive. The issue is that holding an NFT does not imply ownership of an original work. An NFT is simply a digital ticket confirming that you possess a version of a work from a copyright perspective. Buyers’ impressions of their property do not always correspond to legal reality, and the firms involved in these transactions are opaque.

The buyer’s perception of what they are buying may not match the legal reality. NFTs being sold should contain exactly what they want to sell, as an NFT cannot be edited easily once recorded on a blockchain. An NFT does not grant ownership of a piece of work. It is in reality a digital note which verifies that you own a version of the work.

It’s unsurprising that third-party intellectual property is frequently entangled in NFTs without the rights holder’s express agreement or consent. NFTs may include unlicensed copyright-protected content. As expected, intellectual property owners are stepping up enforcement against illicit uses of copyrighted information in NFTs. While NFTs have enormous financial power in the entertainment and collectibles industries, it is unclear how they affect the underlying intellectual property. What is evident is that the rights involved with acquiring NFTs (apart from the right to own) are restricted.

NFTs appear to have immediate uses. To be more specific, this tokenized technology might be used to sectors such as watermarking, in which producers could utilize NFTs to validate the validity of digital artwork or trading cards. Whatever application of NFT technology occurs in the future, one thing is certain—NFTs should not be mistaken with inherent authentication of items. This is particularly critical since complaints of fake NFTs continue to rise.

It is critical to distinguish between ownership of the NFT and ownership of the underlying intellectual property when evaluating the intellectual property implications of NFTs. The rights granted by an NFT seller are contingent upon the rights transferred through a license or assignment, which differ each NFT. You may own a specific video clip or photograph of a LeBron James slam in NFT form, but the NBA owns the underlying rights. In the framework of copyright, ownership of the underlying rights will transfer only if the creator of the original work expressly consents to the transfer. In general, possession of an NFT does not automatically confer ownership of the underlying content or any associated intellectual property rights. As a result, an owner of an NFT may be prohibited from reproducing, distributing copies, performing, displaying, or creating derivative works of the original work. Rather than that, the copyright holder retains exclusive rights.

There are concerns about how will NFTs fit into current copyright law. For example, with regards to music, no artist would be selling the rights to the master version of the music. Those rights are retained by the artist, even as they sell a kind of licensed content to consumers.

However, people can mint NFTs of work they didn’t create. This is where we believe the largest legal issue lies. For instance what happens if someone mints NFT’s of heavily protected music such as the Beatles or Elvis or NFT’s of long established Disney characters? One assumes copyright infringement lawsuits will be plentiful and it appears that the market may not yet be prepared for the eventuality that a work’s original creator may claim copyright infringement.

‍For instance, The Hermitage, the most significant and big museum in Russia, in Russia has taken legal action against Rammstein‘s Till Lindemann over the “unauthorised” sale of an NFT bearing its imagery.

Last week, the German band’s frontman entered the world of non-fungible tokens (NFTs) by selling VIP style access to him along with special digital artwork. Fans were offered the chance to dine with the singer in Moscow, Russia as part of a €100,000 (£84,705) package. While he had been granted permission to film there for the clip, the museum says the musician breached the terms of their agreement by selling NFTs that include materials shot on its premises.

A statement from the State Hermitage Museum, posted to Facebook last Friday (August 13), claims that it has issued Lindemann with a “license violation warning” over what are claimed to be “illegal tokens”.

Financial regulations still applying

Whilst it is easy to point out the legal issues with NFTs and copyright law, the reality is that these tokens are hugely popular and potentially are here to stay. IP law and indeed lawyers will have to deal with these and perhaps rapidly.

While the majority of jurisdictions lack particular legislation or regulations governing NFTs, a slew of current regulations may nevertheless apply. This will rely on the following factors: the qualities and attributes of the token; the actions conducted in connection with the token; and the territorial reach of the applicable regulatory framework.

A few relevant examples :

For instance, in the United Kingdom, the Money Laundering Regulations 2017 define cryptoassets as “a cryptographically secured digital representation of value or contractual rights that utilizes a form of DLT and can be transferred, stored, or traded electronically,” and outline the activities that trigger a registration requirement when performed in relation to cryptoassets. Exchanging NFTs for cash or other cryptoassets, or arranging for others to do so, would trigger a registration requirement. If an NFT does not meet the definition of a cryptoasset, for example, because it does not reflect value or contractual rights, the regime does not apply.

Switzerland provides a favorable and attractive legal structure for cryptoassets, notwithstanding the absence of a dedicated legal framework. The regulatory framework enabling for the issuance and trading of cryptocurrencies has been in place for a few years.  Switzerland has now strengthened its regulatory framework for tokens representing rights, such as asset tokens and utility tokens representing claims against the issuer or a third party, following the adoption of the Federal Act on the Adaptation of Federal Law to Developments in Distributed Ledger Technology (the DLT Act), which made numerous amendments to Swiss law to account for the potential offered by distributed ledger technology (DLT). Certain provisions of the legislation took effect in February, while the balance of the new provisions will take effect in August 2021. The DLT Act, in particular, established DLT rights as a new class of assets as a digital alternative to certificated securities. DLT rights should be transferrable exclusively via the blockchain. Additionally, Swiss legislation has developed a new sort of license category for trading venues that allow for the trading of DLT rights. Additionally, extra segregation rights have been introduced for cryptoassets kept in custody by a third party (e.g., a wallet provider) in the event of the third party’s insolvency.

Yet the the Swiss Financial Market Supervisory Authority (FINMA) has frequently declared that it will make no distinction between different technologies used for the same activity; in other words, it will apply the’same business, same rules’ concept to any new technology. This of course does not really fit with the specific problematics of NTF.

This lack of certainty about buyers’ intellectual property rights has not deterred users from investing millions on virtual land NFTs, with some speculating that it could be at the vanguard of a near-term virtual real estate bubble. Dapper Labs Inc., the Canadian business that pioneered the usage of NFTs in CryptoKitties, has done the most to address these IP concerns by developing an NFT License. Apart from the obvious draft difficulties, this helps customers understand they are not purchasing the copyright but rather a form of licensed content.

Are NTF new forms of intellectual property?

Without any doubt no.  NFT will not change , and have not changed anything as to IP law.

While we can have been quick to point out the legal flaws in NFTs, we cannot overlook their cultural and technological novelty.  There may be significant benefits for artists seeking to maximize the revenue generated by the usage of their work. As previously stated, artists have the option of minting their NFT according to a variety of various criteria. Therefore, if you desired to be compensated anytime your work’s rights were used, you would choose a token that established such restrictions (as it happens the ERC-1190 standard does this). And, as Valéry prophesied, innovation has the potential to alter our conception of what constitutes art and, consequently, what merits copyright protection and what does not.

It remains to be seen whether NFTs live up to the buzz around them. Whether the future is a world with a thriving NFT art market or a world where disgruntled crypto art collectors sue for consumer protection violations (or both! ), there are certain to be some intriguing legal challenges on the horizon.

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ntf, token, law, legal, droit, légal, cryptos, cryptocurrencies, news,
Financial Law, Law,

Some Legal considerations on NTF

by iusblog9 October 2021

Introduction

Non-fungible tokens (NFTs) have existed for many years but have recently garnered enormous traction in the form of digital kittens (CryptoKitties), sports highlights (NBA Top Shot), music album downloads (Kings of Leon), and Christies-auctioned digital paintings. Sir Tim Berners-Lee recently sold an NFT with the original source code for the world wide web.

NFTs let companies to communicate directly with consumers in the digital age; they enable brands to instill a sense of scarcity and thus value in their digital collectibles, which include images, videos, and audio files. They might be the digital equivalents of the Panini trading cards traded by children in school yards during the 1980s and 1990s. Additionally, because NFTs enable the tokenization, storage, and ownership of rights in digital or physical assets, they are anticipated to find widespread application in industries such as financial services.

However, what are they, what do they represent, and what legal and commercial implications should be considered?

NFTs – what are they and what do they represent?

A non-fungible token (NFT) is a one-of-a-kind digital token that is created (or “minted”) and stored on a decentralized ledger known as a blockchain. NFTs can be purchased and traded just like other types of property, but they lack a physical form. NFTs are “non-fungible” (i.e. distinct and non-transferable) because each token contains unique data (e.g. code and other information) that differentiates it from other NFTs associated with the relevant blockchain.

NFTs can be created using blockchain systems such as the public Ethereum network, Polkadot, Cosmos, and Flow. The NFTs can then be purchased and sold via a website dedicated to the underlying blockchain solution (e.g. OpenSea). The blockchain solution is the back-end technology that keeps track of who owns the NFT. The NFT marketplace is the user interface via which token buyers trade NFTs.

In general, NFTs are classified into two types:

• First Category: the token is tied to a physical asset (e.g. luxury goods or diamonds). A buyer purchases a physical asset from a seller, and the parties agree (in the sale contract) that the seller will issue the buyer an NFT linked to the physical asset, which will contain a digital certificate of authenticity/proof of ownership (digital record) confirming the physical asset’s authenticity and the buyer’s details. This gives the buyer with an irreversible, digital record of ownership of a genuine asset, which the buyer can subsequently use to sell the physical asset. This is a far superior record to a paper-based one that is easily lost or doctored. When a physical asset is sold, the data contained in the digital record is changed, for example, to reflect the new owner’s information.

• Second Category : the token represents the right to act on a (licensed copy of a) digital asset. This is how it might work:

o The NFT contains unique data, such as a unique URL link that directs the token purchaser to a web server housing the relevant digital asset.

o The digital item is not included in the NFT since doing so would be excessively computationally intensive.

o If the digital asset is a media file (e.g., a music file), the NFT normally signifies the right to download and listen to the music, which is accessible via the URL link, for personal use.Legal and commercial issues

Contract

It is critical that there are underlying terms and conditions governing the sale of the NFT (both the initial sale after the NFT is minted and subsequent sales via the NFT marketplace) to ensure that there is clarity regarding what the token represents, the rights of the token creator, and the rights acquired by the token buyer.

IP will be critical in regard to Category 2 NFTs, where the token creator grants the right to use a digital asset associated with the NFT. For instance, is the token purchaser acquiring a right to the linked digital asset’s intellectual property or merely a restricted license to use the linked digital asset? In the case of Category 2 NFTs, when the connected digital asset is a unique URL to a freely downloadable music file, the token buyer often acquires the right to download and listen to the music file for personal use, not the right to own the music file (copyright in the music file is not being transferred to you). As a result, the token creator is allowed to duplicate and market the song.

Rules governing financial regulation

There is no regulatory structure specifically for digital tokens, including NFTs. Thus, a critical concern for blockchain platforms and brands is whether the NFT will likely represent a regulated financial instrument or would be subject to anti-money laundering regulations.

Whether an NFT is classified as a financial instrument, such as a security, is determined by the NFT’s attributes and the rights granted to the token buyer. The non-fungible nature of the token has no bearing on the NFT’s regulatory status.

If the NFT just reflects ownership in an asset or copy, it is unlikely to be regarded a security and is more likely to be classified as a utility or exchange token if all it does is give the right to own and trade the asset.

However, if the NFT resembles a security, such as a share or a unit in a collective investment scheme, it may be deemed a “security token.” This may also contain fractionalised NFTs. The majority of NFTs are unlikely to be classified as e-money tokens, considering the fundamental property of e-money is its intrinsic fungibility.

While the majority of NFTs have not yet crossed these regulatory boundaries since they are focused on rights to an asset or copy in sports, art, or music, use cases are anticipated to increase rapidly.

There is a need to consider these issues because anyone or company conducting business in this area would be subject to the same regulation as traditional financial service providers. For instance, the issuer may be required to obtain a license or to comply with anti-money laundering rules, and the same analysis would apply to exchanges that facilitate the buying and selling of these NFTs, as well as token custodians or wallet providers.

Additionally, many jurisdictions may have marketing limits or even prohibitions on NFTs that are classified as utility tokens or exchange tokens, which will need to be addressed if NFTs are sold or distributed more extensively.

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Non-legal issues

Along with legal considerations, technical practicalities must be considered. For instance, what if the web server that hosts the digital asset fails? A growing number of developers are creating tokens using hashes of IPFS URLs. IPFS is a peer-to-peer file storage system that enables material to be distributed over several computers, replicating the file in numerous locations. This guarantees that the digital asset will always be available as long as there are willing nodes to host it. The digital asset’s worth can be increased by storing it on a peer-to-peer file storage system.

Numerous brands are pursuing additional commercialization of their intellectual property through the establishment of NFTs. Due to the fact that these brands frequently lack the technical competence necessary to develop the NFT and/or to develop and administer the NFT marketplace, they employ blockchain vendors to undertake these functions on their behalf. The brand grants the blockchain provider permission to host a copy of the relevant digital asset. The blockchain provider then produces a unique URL for the hosted digital asset and combines it into a newly minted NFT. Additionally, the brand may grant a license to the blockchain supplier to use its trademark (which is then incorporated into the NFT marketplace), ensuring that token buyers interested in purchasing the NFTs are aware they are authentic. In exchange for the license to the digital asset and trademark, the brand often receives a cut of any fees produced by the blockchain supplier’s sale of any NFTs. To avoid brand reputational difficulties, such companies must ensure that the blockchain supplier delivers the offering in line with local regulations and provides an acceptable level of service to token buyers. For instance, if the NFT marketplace is perpetually inaccessible, this will have an effect on the brand linked with the NFTs’ reputation. Additionally, great attention should be made to what happens if the brand’s contract with its blockchain supplier is terminated. For instance, is the blockchain supplier no longer permitted to generate new NFTs but is permitted to sell/resell existing NFTs (Existing NFTs)? To what degree can the brand then license its relevant IP (to the extent that such IP is unrelated to any Existing NFTs) to a new blockchain supplier, who can then produce new NFTs for a new NFT marketplace that may compete with the prior blockchain provider and its Existing NFTs?

Conclusion

NFTs provide marketers an exciting new channel for connecting with their customers and supporters. Tiktok is only one of the latest brand to get into the NFT Business. Brands, token purchasers, and token creators should consider the issues surrounding the tokens – including liability, consumer protection, data protection, intellectual property protection, financial regulation, technical feasibility, and brand reputation – all the more so as the number, complexity, and variety of NFTs continue to grow (and this will no doubt lead to more complicated issues to consider and resolve).

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The institution of the common market and the ECN directive

by iusblog16 September 2021

Towards the establishment of the single market

The institutions of the European Union play a fundamental role in the realisation of the single European market, notably through the adoption of treaties, their interpretation by European judges or the control of the institutions over the actors who impact on this market. However, it cannot be achieved without the active intervention of the Member States, which must respect the Union’s rules and ensure that they are respected by both natural and legal persons. National institutions play an essential role in monitoring the correct application of regulations within the States.

One of the pillars of European Union law is its competition policy, which is one of the means of achieving the European internal market and above all the four freedoms: free movement of services, capital, goods and persons. This involves a ban on abuses of dominant positions and agreements between companies that would distort competition. Moreover, state aid paid to certain companies that would restrict competition is also prohibited, although certain exceptions are allowed.

The different competition authorities of the European Union member states

To ensure that competition policy is respected, in each of the Member States, competition authorities monitor that companies’ actions comply with the competition rules. In order to strengthen European competition policy, the institutions have put in place various measures. The first step was the adoption of the regulation 1/2003 which created a European Competition Network (ECN) in which national competition authorities enforce competition law in a decentralised way while cooperating with each other and with the European Commission.

The European Union has embarked on a new phase in its competition policy. This aims to consolidate and strengthen the role of national competition authorities by harmonising their powers, means of intervention and operating rules. To this end, the directive (EU) 2012/1 of the 11th of decembre 2018 The aim of this directive is to provide the competition authorities of the Member States with the means to implement the competition rules more effectively and to guarantee the proper functioning of the internal market. The aim of this directive is to ensure uniform application of European competition law, in particular by strengthening cooperation within the European Competition Network between the Commission and the national authorities. The system governing European competition law is decentralised and based on trust and dialogue between the authorities and the Commission. The new EU Directive does not fundamentally change the ECN, it only aims at strengthening cooperation between the actors and harmonising the implementation of EU competition rules in all Member States.

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The search for independence of national authorities

As regards the institutions themselves, the aim of the Directive is to “ensure that NCAs [National Competition Authorities] have the guarantees of independence, resources and powers of coercion and fine-setting necessary to be able to apply Articles 101 and 102 of the Treaty on the Functioning of the European Union effectively“. This includes the possibility for the authorities of each Member State to impose effective, proportionate and dissuasive fines on companies that engage in behaviour that is contrary to European competition rules. The Directive provides that the fine will be set in proportion to the company’s worldwide turnover.

Initially, the power or lack of power for Competition Authorities to sanction actors that violate competition law depended on the States. For example, in Ireland, the Competition Authority could not itself impose sanctions on companies that engaged in anti-competitive behaviour, it had to look to the courts to impose sanctions, but it was found that this system was ineffective and in fact very few sanctions were imposed.

French situation

In France, there was already a system of administrative sanctions that could be imposed by the Competition Authority. The main change brought about by this new directive is that of the opportunity to prosecute provided for in Article 4(5) of the directive : « National administrative competition authorities shall have the power to set their priorities in order to carry out the tasks necessary for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union, as referred to in Article 5(2) of this Directive. To the extent that national administrative competition authorities are required to examine formal complaints, these authorities have the power to reject such complaints on the grounds that they do not consider them a priority. This is without prejudice to the power of NCAs to reject complaints on other grounds defined by national law. » National administrative competition authorities shall have the power to set their priorities in order to carry out the tasks necessary for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union, as referred to in Article 5(2) of this Directive. To the extent that national administrative competition authorities are required to examine formal complaints, these authorities have the power to reject such complaints on the grounds that they do not consider them a priority. This is without prejudice to the power of NCAs to reject complaints on other grounds defined by national law, in the article L462-8 of the Code de commerce . With this new competence, the question arises as to whether this new system is totally at the discretion of the Competition Authority, as Article 4 does not define the principle of discretionary prosecution, and the risk of abuse must be taken into account, particularly with regard to the lobbying of companies targeted by the complaint. Moreover, it implies that some cases may be treated in priority to others, what recourse will there be in the event of too long a delay due to this new principle of expediency of proceedings?

Secondly, in order to strengthen the powers of the national authorities, the Directive introduces investigative powers for these authorities, powers that will ensure the effective application of Articles 101 and 102 of the TFEU. In the course of these investigations, the Competition Authorities will be able to issue any interim measure they deem necessary, in accordance with Article 11 of the Directive, which provides that  Member States shall ensure that, at least in cases of urgency justified by the risk of serious and irreparable damage to competition, national competition authorities are empowered to act on their own initiative to order, by decision on the basis of a prima facie finding of an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union, the imposition of interim measures on undertakings and associations of undertakings. This possibility offered to the competition authorities constitutes a new power in many countries, as is the case in Ireland, where the powers of the Competition Authority were previously limited.

The question then arises as to what impact this directive will have on companies. Will they have to make special arrangements to prepare for the new rules? The competition rules are not intended to change with this directive, it only aims to strengthen the authorities of each Member State, therefore, it will influence the activity of companies at international level because they will be able to obtain more easily the respect of the competition rules in all the States of the Union, this is allowed by the fact that it encourages a homogenization of the rights and the rules of procedure.

In France, however, the Directive may have a significant impact on trade associations in which many companies are involved. Article 15 of the directive provides that “the maximum fine that national competition authorities may impose on each undertaking or association of undertakings participating in an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union shall not be less than 10% of the undertaking’s or association of undertakings’ total worldwide turnover in the business year preceding the decision. In France, the maximum amount of the tax was set at €3 million, but from now on it will be raised to 10% of the total turnover of the company or association. This change may be significant for some professional associations. However, it should be remembered that the Competition Authorities are subject to the principle of proportionality of the sanction they impose in relation to the facts in dispute. Consequently, this ceiling may only be imposed very rarely. This measure is justified by the principle of harmonisation of European Union law and is accompanied by the principle of financial responsibility of companies sanctioned as a result of the cartel.

The Irish Situation

In addition to the introduction of a ceiling, the Directive provides for the introduction of civil financial penalties. This provision makes major changes to certain laws, such as Irish law. Until the entry into force of the Directive, only criminal fines could be imposed by the Irish Competition Authority, which meant that the courts had to intervene to implement it and the Authority had to prove the infringement of the competition rules before the courts, without any doubt. This complex system meant that the Authority only imposed criminal fines for the most serious competition law infringements and where the cartel was characterised. The introduction of civil sanctions is likely to lead to an increase in sanctions and activity by the Irish Competition Authority, due to increased enforcement powers. These measures should introduce a more effective competition law regime in Ireland but also in most EU countries.

Finally, it can be seen that this directive has not had the same impact in all Member States. While some countries, such as France and Spain, already applied most of the rules, in other countries, the power granted to the Competition Authority was less, as was the case in Ireland. Therefore, in the latter, the directive will have a greater impact.

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Law, Law,

Abuse of dominant position in European Countries

by iusblog8 September 2021

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Respect for competition rules is one of the fundamental principles of the European Union. The European single market cannot be achieved without a competition policy that guarantees free access to the market for all. The Treaty on the Functioning of the European Union aims to prevent restrictions and distortions of competition within the internal market. Despite these rules aimed at ensuring the proper functioning of the internal market, there is evidence that some players continue to engage in anti-competitive behaviour. The European Commission, as guardian of the EU Treaties, is responsible for sanctioning players who do not respect the competition rules in the European market.

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A very hot issue for the commission

This competition regulation, guaranteed by the Commission, applies directly in all EU Member States and prohibits certain behaviour that could harm the proper functioning of the internal market, such as agreements aimed at fixing prices, allocating customers in the market or limiting production. The second major prohibition is the abuse of a dominant position, which consists of behaviour by a company in a dominant position on a market which is designed to eliminate other players from the market or to deter others from entering the market, thereby distorting competition.

In 2018, the giant Google was criticised by the Commission for engaging in such behaviour. The company was fined €4.34 billion for illegal practices regarding Android mobile devices in order to strengthen the dominant position of its engine. The company was forcing mobile device manufacturers to install its applications. Margrethe Vestager, European Commissioner for Competition Policy, said: “Google is using Android as a vehicle to consolidate the dominant position of its search engine”. This behaviour has consequences in many areas, “These practices have deprived its competitors of the possibility to innovate and compete on their merits. They have deprived European consumers of the benefits of effective competition in the important market for mobile devices. This practice is illegal under the European Union’s rules on anti-competitive practices.

This practice used by Google in order to strengthen its dominant position on the market is considered as an anti-competitive practice and sanctioned as such. The CJEU has had the opportunity to define the concept of a dominant position a few times, starting dating back in 1978 : “To a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors , customers and ultimately of its consumers . ” – Judgment of the Court of Justice of 14 February 1978, United Brands v Commission. This definition by the European judges remains very general and does not really answer our questions: what acts can be sanctioned on the basis of abuse of a dominant position? The answer is left to the national authorities. 

The Irish law : a packed yet very efficient system

In application of European law, Irish law prohibits the abuse of a dominant position. Competition in Ireland is, of course, regulated by European provisions but also by the Competition Act de 2002 (CA 2002), latest amended in 2017, and by the Competition and Consumer Protection Act de 2014. Both act mainly give the government itself the ability to attack law-breaking companies, allowing court to judge in very fast trials. However, the  Commission for Communications Regulation , a mainly bureaucratic institution, also has powers to enforce Articles 4 and 5 of the Competition Act and Articles 101 and 102 TFEU. It worth noting that the CCPC may not grant injunctions or interim measures , which function is confined to the courts, making it a mainly prosecutorial body. 

The article 5 of the CA 2002[1] prohibits conduct by one or more undertakings which amounts to an abuse of a dominant position in a market if it is capable of affecting trade in Ireland. In order to be characterised, the dominant position must exist in Ireland and the effect on trade must occur in Ireland, yet the abuse may take place outside Ireland. This means that a Spanish company, which has no premises in Ireland, can be punished for abuse of dominance in Ireland if its action in Ireland would affect trade in Ireland. There is no exemption from the abuse of dominance prohibition under Irish law. In addition, both the High Court, Court of Appeals and Supreme Courts have given extremely broad definitions in cases such as  in the HB/Mars/Ice-cream (This litigation started in Ireland and culminated in the Court of Justice of the European Union (CJEU) judgment in Case C-344/98, Masterfoods Ltd. v. HB Ice Cream Ltd., 2000 E.C.R. I-11369.) .
Abuse has been alleged and mostly found to exist in regard to issues such as :

  • discriminatory pricing, (Island Ferries Teoranta v. Minister for Commc’n, Marine & Nat. Res. [2011] IEHC 388)
  • excessive pricing, ( Case COM/107/02—TicketMaster Ireland, Enforcement Decision E/06/001 (Sept. 26, 2005),) 
  • margin squeeze,
  • predatory pricing, (COM/005/03—Drogheda Indep. Co. Ltd., Enforcement Decision E/05/001 (Dec. 7, 2004)) 
  • rebates, (Case COM/13/005—An Post, Enforcement Decision E14/001, part 5 (Oct. 30, 2014),. motivated by a previous EU principle decision,  C-497/99 P, Irish Sugar plc v. Comm’n, 2001 E.C.R. I-5333.) 
  • refusal to supply (by a open note) 
  • and tying. (Competition Auth. v. O’Regan [2007] IESC 22 (Supreme Court); and Blemings v. David Patton [2001] 1 IR 385 (High Court).) 

The Irish regime creates no provision for non-economic (or, more precisely, non-competition) factors (e.g., public policies favouring preservation of multiple market participants or protection of small businesses). This is consistent with Irish competition law in general, which is entirely focused on competition and unaffected by other factors (except in the case of media and newspaper mergers). Irish anti-abuse of dominance laws have not been widely applied. As a result, they remain underdeveloped in the Irish context.  There have been relatively few cases over the nearly three-decade lifespan of the rules—many of the cases have involved alleged dominance (which is sometimes not established) in the case of State entities. The fact that the (now) CCPC’s first major case about dominance failed (the Competition Authority v. O’Regan and others case [2007] IESC 22 (Supreme Court).) does not inspire private litigants to bring cases, and thus more public enforcement is needed to encourage private enforcement. 

The French law : a classic continental position

Exactly as Irish law, the French system also sanctions for abuse of dominant position, but provides a more precise definition than that laid down by the CJEU.  The article L420-2 du Code de commerce states that « It is prohibited, under the conditions provided for in in the article L. 420-1,the abuse by an undertaking or group of undertakings of a dominant position in the internal market or in a substantial part of it. […] The abuse by an undertaking or group of undertakings of a position of economic dependence of a customer or supplier on the undertaking or group of undertakings shall also be prohibited where it may affect the functioning or structure of competition.  ».

The French definition is of course broader, as it directly focuses on both consumers and suppliers But how do you know when a company is really in a dominant position? Article L420-2 of the French Code du Commerce lists a series of acts that can constitute an abuse of a dominant position: refusal to sell, exploitation of a state of dependence, etc. …. However, this list is by no means exhaustive, and the European Commission has published a guide to implementing the article 102 du TFUE[2] sanctionning anti-competition practices. It provides in particular that factors such as the geographical area and the existence of barriers to market entry must be taken into account in order to consider that there is an abuse of a dominant position. Secondly, there can be a dominant position without abuse, and it is therefore this notion that must be characterised so that the actions can be sanctioned. The abuse may, for example, consist of a significant reduction in prices in relation to competitors, which has the consequence of reducing the market share of competitors and of creating new barriers to entry, thus preventing the arrival of new companies on the market.

But the situation of abuse of a dominant position is not so simple to characterise. At what stage can it be considered that the actions are sufficiently serious to constitute an abuse of a dominant position? The French Court of Cassation recalled this in a decision of 15 July 1992: only an appreciable harm to competition can characterise an anti-competitive practice. Therefore, only abuses of economic dependence that are sufficiently significant can be sanctioned. Moreover, the infringement can only be sanctioned if a causal link between the situation of economic dependence and the offending practice can be demonstrated. If both the existence of harm and the direct link are underlying in European jurisprudence in matters of abuse of dominant position, they are explicit in French law.  For instance, a state of dependence must lead to the abuse in French law : a company must first be in a situation of dependence and then it will take advantage of this situation to obtain even greater benefits, for which abuse will be found. 

Lack of link in French law between monopolies and abuse of dominance 

Unlike Irish case law, which gives a direct link between monopoly and abuse of dominant position, the French case law do not link the two. Abuse of a dominant position is the act that is sanctioned, and  it can lurely lead to a monopoly, which is a market situation in which a single seller faces a multitude of buyers. However, one has to be careful: not all monopolies arise from situations of dominance. Monopoly is explained by the existence of “barriers to entry”, which means that new companies cannot enter the market to provide the service in question / sell the same products. These barriers to entry can be set by the companies themselves, as in the case of abuse of a dominant position. But another hypothesis is the presence of barriers that are inherent to the activity carried out. The first hypothesis is the existence of high fixed costs due to the size of the market, expensive infrastructures, high research and development costs, etc., which may prevent new players from entering the market because without significant financing they cannot start their activity. High fixed costs are a characteristic of network economies such as electricity where, in order to enter the sector, it is necessary to be able to build power stations, ensure distribution etc., which implies very high costs and is a brake on the entry of new players in this market.

The second category of barriers to entry is the existence of economies of scale in certain industries with increasing returns. Economies of scale refer to the fact that the unit production cost of a product or service decreases as output increases. These economies of scale do not allow small companies to be profitable, so they block them from entering the market. This is for example the situation Google is in: the company invested many years ago in hardware and was able to grow and establish itself allowing its turnover to increase considerably compared to the financial requirements to generate these profits. If a company were to enter the market today, it would have to face extremely high fixed costs that would not allow it to be profitable compared to Google.

A third hypothesis concerning barriers to entry, which can lead to a monopoly, is the state: we speak of legal monopolies. These are monopolies that are authorised and regulated by law. They aim to restrict competition in certain markets in order to pursue strategic or regional planning objectives or to guarantee a public service. How can a monopoly be compatible with the competitive requirements imposed by the European Union? The combination of these two requirements in the European Union is complex. Since the Single European Act of 1986, the questioning of public monopolies has appeared in Community law. It is from this treaty that many sectors previously entrusted to national monopolies have been opened to competition. For example, in Italy, the Mammi law was passed in August 1990 to abolish the RAI (radiotelevisione Italia) monopoly, allowing access to television to be opened up to private groups. And the end of state monopolies has multiplied in many EU member states with the major role it plays in our economy. The European Commission is not clearly opposed to public monopolies but considers that these services must be provided efficiently and at low cost. The risk for a public company not subject to competition is that it will charge too high prices, which is why the European Commission considers that any activity should be subject to free competition unless it is incompatible with it.

The European Law : evolving but not yet fixed as to public monopolies

Article 37 of the Treaty on the Functioning of the European Union provides a framework for these public monopolies, stating that “Member States shall arrange national monopolies of a commercial character in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States”. This implies that Member States have a duty to provide these services fairly and in accordance with the general interest. The Court of Justice of the European Union is there to supervise the States and to sanction the bad management of their monopoly. For example, in the 2010 Stoss and Carmen Media Group judgments, the European judges ruled that the public monopoly on sports betting in Germany did not ensure that the general interest objectives invoked by the German legislator were achieved in a consistent and systematic manner. This decision was justified by the fact that the monopoly holders were running intensive advertising campaigns and that the competent authorities were at the same time pursuing policies to encourage participation in other games that could lead to a high risk of addiction for players.

Despite strict rules governing legal monopolies, they are set to disappear due to the influence of European ideas. One of the major monopolies of the French state ended in 2020: the railway market. The aim was to allow private operators to run their trains on the rail network. This reform was prompted by the European Union to improve service performance. However, the situation is now more complex as there is little competition to the SNCF. This can be explained in particular by the very high costs of entering the market. This raises the problem of how to encourage companies to invest in this sector, a situation that the global pandemic has not improved.

Finally, it can be seen that the European Union makes it a point of honour to ensure that competition in the market is respected, but the situation is not so simple and the abuse of a dominant position can happen quickly, so it is important, as a single player in the market, to ensure that it does not take unfair advantage of its situation.

  1. « (1) Tout abus par une ou plusieurs entreprises d’une position dominante dans le commerce de tous biens ou services dans l’Etat ou dans toute partie de l’Etat est interdit.

    (2) Sans préjudice de la généralité du paragraphe (1) , un tel abus peut notamment consister en :

    (a)  imposer directement ou indirectement des prix d’achat ou de vente déloyaux ou d’autres conditions commerciales déloyales,

    (b) limiter la production, les marchés ou le développement technique au préjudice des consommateurs,

    (c) appliquer des conditions différentes à des transactions équivalentes avec d’autres parties commerciales, les plaçant ainsi dans une situation de désavantage concurrentiel,

    (d) subordonner la conclusion de contrats à l’acceptation par d’autres parties d’obligations supplémentaires qui, par leur nature ou selon l’usage commercial, n’ont aucun rapport avec l’objet de ces contrats. » ↑

  2. Article 102 TFUE : Est incompatible avec le marché intérieur et interdit, dans la mesure où le commerce entre États membres est susceptible d’en être affecté, le fait pour une ou plusieurs entreprises d’exploiter de façon abusive une position dominante sur le marché intérieur ou dans une partie substantielle de celui-ci.

    Ces pratiques abusives peuvent notamment consister à :

    imposer de façon directe ou indirecte des prix d’achat ou de vente ou d’autres conditions de transaction non équitables,

    limiter la production, les débouchés ou le développement technique au préjudice des consommateurs,

    appliquer à l’égard de partenaires commerciaux des conditions inégales à des prestations équivalentes, en leur infligeant de ce fait un désavantage dans la concurrence,

    subordonner la conclusion de contrats à l’acceptation, par les partenaires, de prestations supplémentaires qui, par leur nature ou selon les usages commerciaux, n’ont pas de lien avec l’objet de ces contrats. ↑

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