463. On behalf of the proponents, I would like to thank Members who have intervened on this particular topic. I believe the objective of having entered into a discussion on competition does not undermine the application of IPRs as recognized under the TRIPS Agreement. The proponents demonstrated that there are various pro-competitive provisions in the TRIPS Agreement. Four provisions specifically refer to competition law issues: Article 6, Article 8.1, Article 31(k) and Article 40. There is no doubt that these provisions leave WTO Members broad policy space to apply competition law in respect of acts related to the acquisition or exercise of IP rights. Outside of these provisions there are several other provisions, as demonstrated, that give context to these rights. Whereas our paper does not advocate the use of competition policy to violate rights recognized under the TRIPS Agreement, it reminds all of us that the granting of intellectual property rights recognize inherently the balance between the rights holder and the vested rights that society have in this particular process.
464. Article 8 of the TRIPS Agreement sets out a very important parameter for the application of appropriate measures and requires that they be consistent with the Agreement. Nowhere in our paper do we make the statement that rights recognized under the TRIPS Agreement should be unduly impeded by application of competition law principles. The proponents also indicated that competition law should recognize the basic rights granted under intellectual property law and that intellectual property does not necessarily create market power. As a result, to determine the effect of any restrictive practice, some sort of rule of reason should be applied to assess the effect of such a practice, short of such a practice essentially being deemed inherently illegal. The facilitation of universal access to health, including access to medicines and medical technology is not only a function of the IP system, it requires a much broader approach, as pointed out by the US and several other delegations. This cannot be disputed. In previous contributions proponents recognized this fact, the interplay between the domains of health, trade and IP affect medical innovation and access to medical technologies, so focusing merely on IP as one of the modalities may be misplaced.
465. In closing, we would also reiterate that the expression of competition law is generally used to describe a set of rules aimed at addressing anti-competitive behaviour associated with the existence of market-dominant positions and restrictive business practices. What we can see is that some competition laws focus on the effects of regulated conducts on competitors, while others focus on competition as such. Consumers (and not just competitors) are protected to a different extent under various national regimes. For instance, the approaches of the United States and the EU differ in the treatment of dominant firm conduct. The US representative indicated that US antitrust statutes have no equivalent to the excessive pricing prohibition under EU rules. This is essentially an indication that all of us apply to a certain extent different rules when it comes to competition. We hope that this clarification puts the discussion of this topic on an even keel. We are happy to reach out to any delegation that needs further clarification on any of the points that we have made.
