European Law and Technological Innovation





Technological innovation has transformed the human condition significantly over the past fifty years. Having resulted in unprecedented growth and increases in people’s living standards, technology is believed to have had a major impact on individuals and societies alike. It should not come as a surprise, therefore, that the continuous promotion of technological innovation has become one of the key policy objectives of modern societies, which have adapted their legal frameworks accordingly.

The European Union is no exception in that regard. Although the EU institutions are clearly committed to technological innovation, maintaining and promoting such innovation can only take place against the background of existing EU law provisions and doctrines. As such, the desire to promote and sustain technological innovation and the specificities this process entails have to be reconciled with the protection of undistorted competition, the free movement within the EU internal market, and the fundamental right to privacy. As a result, both the EU institutions when acting in a legislative or regulatory capacity and the EU courts have been called upon to make careful and refined balances, reconciling the perceived need for technological innovation and the protection of the rule of law within the EU’s legal order.

This course will explore how this balance has been struck throughout the substantive law of the European Union. It will question whether, and if so, to what extent, EU law takes technological innovation considerations explicitly or implicitly into account. Specific attention will be paid in that respect to the EU’s desire to maintain ‘technological neutrality’ in the application of its regulatory framework.

The course will be divided in six parts. The introductory part will define the notion of innovation and sketch how and where innovation and European Union law meet. Attention will be devoted to the European Commission’s attempts at creating an ‘Innovation Union’ and the ways in which law is used as an instrument in support of such innovation union.

The second part explores how EU internal market law can stimulate innovation indirectly. The mere establishment of an internal market and the resulting abolition of regulatory frontiers between Member States in themselves indirectly stimulate innovation and the introduction of new products or services. This part of the course will explore to what extent newly introduced products or services – potentially disrupting the status quo in Member States’ markets – can indeed more easily gain access to those markets by virtue of EU fundamental freedoms. Specific attention will be paid to the free movement of goods and the freedom to provide cross-border services in that respect.

The third part will analyse how EU law itself directly stimulates the development of innovative technologies, by guaranteeing uniform protection and intellectual property rights to innovators. The establishment of a unitary patent has proven important in that regard.

The fourth part will study direct stimulus initiatives in the context of direct state intervention. EU State aid provisions do indeed limit

The fifth part looks at the two roles EU competition law can play in promoting or structuring technological innovation. On the one hand, competition is said to stimulate innovation and some agreements – such as technology transfers – may indeed directly enable innovative developments to take place. As a result, EU competition law directly regulates such transfers in EU secondary legislation, facilitating innovative developments along the way. On the other hand, competition law also protects against the excesses of innovative technological developments. EU competition law offers specific tools to protect individuals or businesses against the excesses of innovation, e.g. through compulsory licensing of intellectual property rights held by a single firm which could impede the development of new innovative products.

The sixth part outlines to what extent the rights to privacy and personal data protection directly intervene in the context of technological innovation. The complex and nuanced legal framework on data protection and retention established at the EU level will be analysed, demonstrating how EU law seeks to balance risks associated with the unfettered use of data and the continued reliance on data as part of technological innovation.

11 interactive lecture sessions will be offered, each lasting 2,5 hours. Lecture sessions will take place in the Mahaim lecture room (B31- Sart Tilman campus) on Friday from 15.30 to 18.00. In addition, an individual feedback moment for the discussion of your draft paper will be organised in the week starting 28 November.

The lecture sessions are divided as follows:

Innovation and the European Union (23/09)
Indirectly stimulating innovation in the EU internal market – free movement of goods as an instrument of innovation? (30/09)
Indirectly stimulating innovation in the EU internal market: disruptive innovation versus economic regulation? (7/10)
Towards EU-wide intellectual property rights? (14/10)
Directly stimulating innovation through State resources (21/10)
EU competition law – promoting innovative cartels? (28/10)
EU competition law – Standard Essential Patents and the promotion of innovation (4/11)
EU competition law – from Microsoft to Google (18/11)
Protection against innovative excesses – privacy and data protection (25/11)
[Individual feedback sessions on the first draft of your paper (week starting 28/11)]

Protection against innovative excesses – data retention (2/12)
European Union law and innovation – looking back and forward (9/12)
Prerequisites: droit institutionnel européen; some basic knowledge of EU law is required. We will revisit the basics of EU substantive law throughout the course.

A reader containing relevant cases and materials will be at your disposal at the Presses Universitaires. E-campus will be used to offer you lecture outlines as well as course materials.

The examination in this course will be an oral exam during the exam period; it will count for 75% of your final grade. 25% of your grade can be earned through a 3000 words (six page) focused paper on a suggested or proposed specific topic related to the course materials. Paper topics will be handed out during the first class. You are expected to submit a first draft by 18 November and a final version by 23 December. Individual feedback moments will be organised following submission of the first draft.

Liege Competition and Innovation Institute
University of Liege (ULg)
Quartier Agora
Place des Orateurs, 1, Bât. B 33
BE-4000 Liege

Phone: +32 4 366.31.30
Fax: +32 4 366.31.55