SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Massimiliano Granieri (Università degli Studi di Brescia)
Abstract
Many technologies that are needed to achieve Net Zero and to arrive to more sustainable ways of production and consumption are not yet there. But quite of few of these technologies are already available and only await to be transferred to undertakings willing to bring them to market fruition. Historically, in all most advanced economies the legal system has been seen as instrumental, among other things, to creating the conditions that favor innovative activities and technology transfer. The same belief holds as far as technologies for the green and energy transitions are concerned.
Antitrust rules are significantly responsible for the build up of market conditions that favor exchange of proprietary technologies between the public and the private sectors and among private companies. All contemporary and most advanced economies adopt antitrust provisions for research and development and technology transfer and Europe and United States are the front runners in the international legal order in stimulating technological collaboration and exchange of technologies that are protected by intellectual property rights. Post-covid measures to foster growth and resilience and to climate-friendly technologies have set in motion competition among states, that are now working to re-design industry sectors and lay down the rules for what it has been termed a Green New Deal.
From a comparative perspective, there are several aspects worth investigation. First of all, is sustainability a shared policy among states when shaping market conditions for parties willing to cooperate? To what extent antitrust laws accept sustainability as a goal, or should do so? About technology transfer agreements in an antitrust perspective, are states (Europe and the United States) converging in the name of achieving sustainability or differences still matter? The United States Department of Justice and the Federal Trade Commission renewed their policy on licensing intellectual property in 2017 and Europe is in the process of reviewing competition rules on technology transfer, after adopting in 2023 new provisions on R&D and specialization agreements, that are also concerned with intellectual property rights.
Sustainability is a worldwide goal; to the extent technology transfer is facilitated by antitrust rules, available technologies could be deployed at a more rapid pace. But if the problem is global, legal solutions cannot remain limited so specific areas. This paper aims at investigating the comparative dimension of the current legal order at the interface of intellectual property, antitrust, and sustainable development.