Category: Slovenia

In the light of the favourable economic climate and affordable financing sources, Slovenia has been facing a lively M&A market in the recent few years, especially in the area of commercial real estate. Further, companies are eager to refinance their existing debt or borrow new funds under the more favourable conditions currently available on the market.  Since the majority of financing is done via standard bank financing, every deal poses the same old question: “How will be the loan secured”?

If the (re)financing is done on a shareholder or HoldCo level, the most usual solution would be to encumber the subsidiary’s assets as collateral for obligations of the shareholder. The same principle applies to acquisition financing, where a potential target and its assets will usually represent the most important collateral for acquisition financing. A common denominator of the foregoing is the same – a company financially assisting some other company with providing its assets as collateral for obligations of the latter, which can result in its detriment.

Although the complexity and volume of the topic exceeds the capacity of this contribution, I have nonetheless  tried to provide an introduction and a practical guide with respect to some of the most important questions that will either significantly affect the deal structure or are usually overlooked despite their importance.

Is financial assistance even permitted in Slovenia and to what extent?

The term “financial assistance” is not explicitly defined in Slovenian law. Nevertheless, it is generally accepted that financial assistance refers to situations where a company directly or indirectly, with its own assets, assists someone to become its shareholder or to increase its interest in the company. Regardless of the fact that financial assistance in its most strict meaning represents financial assistance with acquisition of a joint company’s shares, the term “financial assistance” is generally used to address questions with regard to any legal transactions between a company and its shareholders.

The Slovenian Companies Act¹ (CA) sets forth two different sets of rules regarding financial assistance and legal transactions between a company and its shareholders, which differ significantly depending on the different forms of incorporation. First and foremost, the rules governing limited liability companies (slo. družba z omejeno odgovornostjo) (LLC) are in general far less rigorous in comparison to those related to joint-stock companies (slo. delniška družba). Further, the CA regulates the financial assistance and legal transactions between a joint-stock company and its shareholders through provisions prohibiting fictitious transactions and return or payment of interest on equity contributions. Conversely, financial assistance with respect to LLCs is regulated via share capital maintenance provisions.

Financial assistance and acquisition financing

(a) Joint-stock companies

In accordance with Slovenian law, financial assistance of a company for the acquisition of its own shares is strictly prohibited, save for two explicit exemptions under the CA. The prohibition of financial assistance must be interpreted broadly and also includes legal transactions with comparable effect. In relation to acquisition finance it may be worth pointing out that the prohibition of financial assistance also includes different forms of personal or in rem collaterals (for example, surety, mortgage or pledge) granted by a company for a loan, which is to be granted by the third party to an existing or future shareholder for acquisition of the company’s shares. Special attention should be paid to any cross-subsidization effects or any other form of enabling acquisition financing (for example granting a security for working capital facility of the buyer). To summarize, all legal transactions that have the economic purpose of financing the acquisition of a company’s shares out of or with assets of the company or otherwise enabling acquisition financing shall be deemed as financial assistance and therefore null and void.

A variation on the prohibition of financial assistance is envisaged also in Article 32 of the Slovenian Takeovers Act, which would be relevant in case of a public takeover bid.

(b) Limited liability companies

Differently from regulations governing joint-stock companies, legal transactions in LLCs, which would be deemed a violation of prohibition of financial assistance in the case of joint-stock companies, are assessed in accordance with application of provisions regarding share capital maintenance under Article 495 of the CA. The latter lays down that the assets required for the maintenance of the share capital and restricted reserves (slo. vezane rezerve) shall not be paid to the shareholders. Certain assets (for example loans between associated persons) are excluded from calculation of assets required to maintain the minimum amount of the share capital (EUR 7,500).

The general rule is that the company is not allowed to pay to its shareholders any payment (or perform similar legal transaction with a similar economic effect) to the extent such payments would affect the company’s assets required for maintenance of its share capital and restricted reserves. Such a legal transaction is null and void. Therefore, financial assistance with respect to LLCs is possible, but limited to the so called “excess balance sheet value”, i.e. balance sheet value, which exceeds the value of the registered share capital and restricted reserves. 

Legal transactions between a company and its shareholders

At the outset, it is worth pointing out that legal transactions between a company and its shareholders (except for actions described in point 2.1(a) above) should not be assessed in accordance with the rules regulating prohibition of financial assistance under the CA, but under the general rules on capital maintenance, in particular with the payment prohibition rule.

(a) Joint-stock companies

Article 227 of the CA sets forth that equity contributions shall not be returned and shall not bear any interest. The only permitted payments are payments of dividends and payments in accordance with permitted acquisition of treasury shares. Conversely to LLCs, all assets of the joint-stock company are protected with capital maintenance provision. Since the prohibition to return equity contributions must be interpreted broadly, it does not apply only to payments that would be explicitly declared as the return of the monetary or contribution in kind. In addition to the general prohibition to return or pay interest on equity contributions, CA also prohibits any kind of so-called concealed distributions of profit.²

Having regard to the above, legal transactions between a joint-stock company and its shareholders (for example up-stream loans and up-stream security) are not prohibited per se, although it must not result in reduction of the company’s assets. The latter is especially worth considering since intra-group transactions tend to be concluded on more favourable terms in comparison to those available on the market (loans with lower interest rates, security without premium, etc.). Therefore, all legal transactions should be subject to a prior accounting (balance sheet) assessment, considering the probability of repayment or enforcement, respectively, and if needed, adequately “neutralized” in the balance sheet with establishment of an appropriate security or recourse claim against the shareholder. Otherwise, such a legal transaction may be deemed as a prohibited (concealed) return of equity contributions.

The legal consequence of a prohibited return of equity contribution is a special (corporate) claim by the company against the shareholder (and not third persons), which cannot be waived or set off. Said claim can be also exercised by the qualified minority shareholders.  Nevertheless, the question of validity of prohibited legal transactions in relation to third parties, i.e. recipients of collateral or similar benefit often arises on the side of the lenders . In principle, the recipient of the collateral as a third party is protected against company’s corporate claims.  However, in accordance with the latest case law of the Supreme Court of the Republic of Slovenia³, this does not apply when a third party acted in bad faith. In such case, the company may have a claim towards such a recipient of the collateral due to its nullity.

(b) Limited liability companies

The main difference in comparison to joint-stock companies is that the whole assets of an LLC are not “restricted”, rather only assets which are required for the maintenance of the share capital and restricted reserves. In the event of interference with restricted categories of capital, a company has the same special (corporate) claim by the company against the shareholder as in the case of joint-stock companies. 

Regardless of the less rigorous regulation of capital maintenance with respect to LLCs, the company’s assets must not be equalled with shareholder’s assets. Any unilateral actions for the benefit of an individual shareholder are not allowed, despite being performed in debit of un-restricted categories of the capital. Therefore, the validity of such legal transactions requires an approval in the form of a unanimous shareholders’ resolution. The rules on equal treatment of shareholders are of course not applicable in the case of LLCs with a sole shareholder.

It can be concluded that in relation to LLCs even loans with higher risk, loans with lower interest rate in comparison to the market interest rate, security without premium or other more favourable legal transactions are permitted under general corporate law subject to the following two conditions: (a) a company has enough available categories of non-restricted categories of capital, so there cannot be any interference with categories of restricted capital and (b) (in case of an LLC with at least two shareholders) shareholders approve such legal transaction with a unanimous shareholders’ resolution. However, care should be had to not overlook any applicable concern law and insolvency law rules. 

If the parties want to err on the side of caution, it is still recommendable that decisions about up-stream loans or security are accompanied by a prior balance sheet assessment as it was contemplated above with respect to the joint-stock companies.

What is the impact of concern law rules (germ. Konzernrecht)?

In the case of affiliated companies, provisions of concern law rules must also be considered. When considering the simultaneous application of concern law and capital maintenance rules, an initial distinction must be made between a factual concern (slo. dejanski koncern) and contractual concern (slo. pogodbeni koncern). Nevertheless, the financial assistance in its strictest meaning (i.e. prohibition of assistance of a joint-stock company in acquisition of its own shares) also applies in the event of affiliated companies and is therefore not suspended with concern law rules. 

In relation to a contractual concern, the CA sets forth that payments made by a company under the control agreement or the profit transfer agreement shall not constitute a violation of prohibition of return of equity contributions and capital maintenance. General rules on capital maintenance are suspended with the conclusion of control agreement itself. Hence, a controlled company should, on the basis of instructions by a controlling company, also grant detrimental up-stream loans, security or enter similar legal transactions, which do not correspond to capital maintenance rules as explained above. Such loans or security can be granted to a controlling company or to other group companies, albeit subject to the condition that a controlling company is able to reimburse the occurred loss. 

The situation gets a tad trickier in instances of factual concerns, where the controlling company is in principle not allowed to give detrimental instructions to a controlled company, unless it compensates the controlled company for the loss occurred due to such instructions. If the loss is not compensated during the financial year, it is necessary to determine when and how the loss is going to be compensated, by no later than the end of the financial year in which the controlled company suffers the loss. The controlling company must establish a claim for compensation of loss (slo. izravnalni zahtevek) for the benefit of the controlled company. The described possibility to suspend the compensation for the induced loss is called the “concern privilege” and is a crucial concept for assessment of legal transactions between companies within factual concern.

Considering the absence of relevant provisions of the CA with respect to factual concerns, the relationship between capital maintenance rules and concern law rules is not yet clearly settled. Legal theory and the Higher court in Ljubljana⁴ have indicated that regime pertaining to factual concerns represents lex specialis in comparison to general rules under the CA. This argumentation is certainly persuasive, since strict application of capital maintenance rules with respect to factual concern would eliminate the purpose of the concern privilege. In addition, it must be noted that the concern privilege only temporarily suspends the capital maintenance rules, as long as it is probable that the controlling company will compensate the detriment. On the other hand, there are also arguments in favour of absolute prevalence of capital maintenance rules, for instance the protection of the company’s creditors. 

In any case, due to the absence of provisions regarding legal transactions between a controlling and controlled company in a factual concern, it is recommended to assess such transactions in the light of the probability of compensation of a detriment. If management of a controlled company, in accordance with business judgement rule, estimates that the successful compensation of detriment is not probable, such a transaction will likely violate the prohibition of return of capital contribution and capital maintenance rules⁵. 

What to consider when thinking of financial assistance?

Are concerned companies joint-stock companies or LLCs?

The form of incorporation is one of the most crucial points to consider, since this will affect the answer if financial assistance is even permitted and to what extent. Namely, in case of joint-stock companies, the parties will face a stricter approach to dealings between shareholders and the company in comparison to LLCs. 

Appropriately drafted financial documentation

Regardless of the party’s status, it is very important that a loan agreement, pertaining transaction security documents and other relevant documentation include adequate limitation language covering, amongst others, relevant capital maintenance and insolvency law rules.

Consideration of concern law rules

The decision for financial assistance within companies, which form a factual concern, cause additional obligations for both the controlling and controlled company, especially in the controlling company’s duty to establish a claim for compensation of loss (slo. izravnalni zahtevek). The latter is usually established with a special compensation agreement, drafting of which requires close cooperation between the legal and financial advisors. Due to its complexity and lack of generally available precedents, such documentation is still widely overlooked in the Slovenian market even by legal advisors, despite the severe consequences for included companies as well for their management.

The devil lies in the multidisciplinarity

Financial assistance represents a rainbow of at least general corporate law, concern law rules and insolvency law rules. Each set of rules should be appropriately considered with legal and financial advisors in order to find the most optimal structure of the deal.

 

¹ Official Gazette of RS no. 65/09, as amended.

² In accordance with the latest case law of the Supreme Court of the Republic of Slovenia , the fundamental rule in assessment of concealed return of equity contribution is whether a company would conclude such legal transaction with a third person in the same circumstances and under the same conditions in the moment of conclusion of that transaction (C.f. Decision of the Supreme Court of the Republic of Slovenia ref. no. III Ips 6/2017 dated 24 July 2018).

³ C.f. Decision of the Supreme Court of the Republic of Slovenia ref. no. III Ips 6/2017 dated 24 July 2018.

⁴ C.f. Decision of the Higher Court in Ljubljana ref. no. I Cpg 1436/2015 dated 30 August 2016.

⁵ Correspondent obligation of management of a controlled company is to prepare a dependency report (slo. poročilo o odvisnosti) within the first three months of a business year. In the report, the management must, among others, state all legal transactions with the controlling company and all information with respect to possible detriment and compensation for such detriment.

By Joze Stare, Junior Associate, Rojs, Peljhan, Prelesnik & partners

No innovations have ever had the magnitude of impact on everyday life as those pertaining to information technology and communication. As a result of their sophistication, endless amounts of data are readily available to us today, at any moment. Artificial Intelligence, making full use of this abundant resource, is a new technological tool sweeping through our world, promising to once again revolutionize our everyday lives. For that reason, it is of utmost importance that appropriate rules are adopted early on to foster innovation and trust in Artificial Intelligence, while ensuring respect for human rights and democratic values.

While the term Artificial Intelligence has been around for quite some time, it has only recently sparked real interest in business and industry. One could argue that out of all the recent buzzwords in digital transformation (like blockchain), Artificial Intelligence is the only one that has seen real and ever-growing industry-wide application, with already noticeable and easily envisioned impact on our daily lives. As lawyers we should be glad to note that this revolutionizing new technology has been greeted by both business and industry, and its impact was so profound that, on May 22 of this year, the first ever set of intergovernmental policy guidelines on Artificial Intelligence was adopted by the OECD.

These Artificial Intelligence Principles stipulate that Artificial Intelligence should benefit people and the planet by driving inclusive growth, sustainable development, and well-being. The technology should be programmed so that it respects human rights, the rule of law, democratic values, and diversity, and to ensure that it does so it should include appropriate safeguards such as transparency and responsible disclosure. Moreover, systems should function in a secure and safe way throughout their lifetimes, and potential risks should be continually assessed and managed. Most importantly, organizations and individuals developing, deploying, or operating Artificial Intelligence systems ought to be responsible for their proper functioning. 

In a nutshell, the intergovernmental policy guidelines on Artificial Intelligence aim to uphold international standards, which are designed to ensure that Artificial Intelligence systems are robust (from a technical perspective, taking into account its social environment), safe, fair, trustworthy, and respectful towards our ethical values and applicable laws/regulations. 

The new world of Artificial Intelligence also represents a big challenge for governments and policy-makers as it is still unexplored. That is why the OECD supports governments by measuring and analyzing the economic and social impacts of Artificial Intelligence and its applications to identify good practices, which eventually can be used as public policy. This approach is showing results, as the OECD has already been able to identify some main points pertaining to national policies and international co-operation for trustworthy Artificial Intelligence. The five main points are: to facilitate public and private investment in research and development to spur innovation in trustworthy Artificial Intelligence; to foster accessible Artificial Intelligence ecosystems with digital infrastructure, technologies, and mechanisms to share data and knowledge; to create a policy environment that will open the way to deployment of trustworthy Artificial Intelligence systems; to equip people with the appropriate skills and support workers to ensure a fair transition; and to co-operate across borders and sectors to share information, develop standards, and work towards responsible stewardship of Artificial Intelligence.

These intergovernmental policy guidelines have already been adopted by forty-two countries, including Slovenia, Germany, and France. It is safe to say that these countries have recognized that Artificial Intelligence as a multiple purpose technology has the potential to improve the welfare and well-being of people, to contribute to positive sustainable global economic activity, to increase innovation and productivity, and to help respond to key global challenges. It is deployed in many sectors ranging from production, finance, and transport to healthcare and security. Artificial Intelligence also raises challenges for our societies and economies, notably regarding economic shifts and inequalities, competition, transitions in the labor market, and democracy and human rights.

In this regard Slovenia is one of the first EU member states aiming to develop and establish a national Artificial Intelligence strategy that, in addition to research, is focusing on societal impacts. Recently, the Slovenian government has announced plans, with official backing from UNESCO, to set up Europe’s first international Artificial Intelligence research center, to make sure that Artificial Intelligence is developed through a humanist approach and shall not become autonomous or replace human intelligence.

By Ales Lunder, Partner, and Martina Mahnic, Associate, CMS Ljubljana

This Article was originally published in Issue 6.8 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

Intellectual property law in the European Union governs the creation and commercial exploitation of exclusive rights given by statutory law to a creator (or inventor). An EU Member State grants a creator a temporarily limited right – intellectual property right – to exclude others from any exercise of the protected intellectual property right as an incentive to promote creative works, innovation or to prevent market confusion. In other words, the main purpose why a state grants intellectual property rights stems from its pursuance of the above-mentioned public interest.

Member States typically limit the scope of intellectual property rights because an unlimited exclusive intellectual property right would initially promote innovation, however, it would subsequently result in an excessive monopolization that would also choke follow-on innovation. Consequently, Member States’ policy on intellectual property law should find the right balance between private interest (to obtain exclusive rights and commercially exploit it) and public interest (to promote innovation). By virtue of balancing different interests, intellectual property rights are defined by numerous exceptions and limitations. Compulsory licensing of intellectual property rights – as a legal remedy against certain prohibited unilateral refusals to license intellectual property rights in the EU – is one of these limitations of intellectual property rights.

In most cases, proprietors of intellectual property rights have no obligation to deal with other parties, particularly competitors. Nevertheless, under exceptional circumstances, an intellectual property right holder has a duty to license certain intellectual property rights or else its conduct shall fall within the scrutiny of EU competition law. These extraordinary circumstances are governed by a legal doctrine called the essential facilities doctrine; a doctrine first developed by the U.S. Supreme Court’s decision in the United States v. Terminal Railroad Ass’n. The essential facilities doctrine, under certain circumstances, forces an undertaking (a firm), holding a dominant position in the relevant (upstream) market, to allow customers, including competitors, access to the “essential facility”; a facility deemed to be indispensable to competition on the merits. Without access to that facility, competitors cannot effectively compete with a dominant firm controlling such an essential facility. 

The notion of the essential facilities requires two markets, frequently expressed as an upstream market and a downstream market. Regularly, one firm is active in both markets. It usually holds a dominant position in the upstream market by controlling an essential facility. Whereas other firms or competitors are active or wish to become active in the downstream market and the only possibility to participate in the downstream market is to obtain access to such facility, controlled by a dominant firm in the upstream market. A downstream competitor wishes to access or purchase an input from the dominant integrated firm but is rejected. The essential facilities doctrine defines conditions under which the dominant firm will be mandated to supply under fair, reasonable and non-discriminatory terms.¹

The essential facilities doctrine typically applies to natural monopolies and infrastructure networks. As an illustration, the essential facilities doctrine shall apply when an electricity transmission grid must be made available under fair, reasonable and non-discriminatory terms to a rival electricity generator because the production of electricity would not be economically feasible without access to an electricity transmission grid. 

However, the principles embedded within the doctrine are also applicable to intellectual property rights. According to the Court of Justice of the European Union (the “CJEU”), intellectual property rights may, under extraordinary circumstances, be deemed as an essential facility indispensable to competition on the merits.² The relevant test about the applicability of the essential facilities doctrine to intellectual property rights is presented further below.

Furthermore, refusal to license intellectual property rights, as an abuse of a dominant position, is an exclusionary non-pricing practice because a dominant company has an intent to foreclose competitors from expanding their current market share or block the entry in the relevant downstream market to potential competitors by invoking the exclusivity of intellectual property rights. Therefore, specific refusals to license intellectual property rights might abuse a dominant position and, thus, violate Article 102 of the Treaty on the Functioning of the European Union (the “TFEU”). 

According to EU competition law, dominant undertakings have a special responsibility to not harm competition on the merits in the EU. Namely, a dominant undertaking should not deprive its rivals an opportunity to compete. By virtue of this special responsibility, a threshold that some exclusionary practices are regarded as abusive is reduced in the EU vis-à-vis other jurisdictions such as the U.S. 

Various jurisdictions, such as the U.S., undertook an unfavorable approach to the application of the essential facilities doctrine. Most U.S. courts and legal scholars quote Prof. Areeda that the essential facilities doctrine is less a doctrine than an epithet because: “[T]he essential-facilities doctrine is a flawed means of deciding whether a unilateral, unconditional refusal to deal harms competition.”³ Moreover, most of the prominent U.S. scholars believe that the doctrine should almost never apply to intellectual property rights.⁴

Differently, according to EU jurisprudence, the essential facilities doctrine can be applied to intellectual property rights. The CJEU confirmed this notion in two far-reaching cases: MaGill⁵ and IMS Health⁶ and the General Court in Microsoft.⁷ 

In the aforementioned cases of MaGill and IMS Health, the CJEU has established a test to determine whether the essential facilities doctrine applies to intellectual property rights. The test is comprised of the following four elements, which must be cumulatively met: 

• refusal to license intellectual property rights eliminates competition in the downstream market;

• access to intellectual property rights is indispensable and it excludes actual or potential alternatives; 

• refusal prevents establishment of a new product, for which a potential consumer demand exists; and

• refusal to license is not objectively justified.⁸

The in-depth analysis of the test’s elements is not the subject matter of this article. Nevertheless, the most troublesome element of the test is the indispensability criteria. A too broad interpretation of the indispensability element will weaken the incentives to innovate, cause prejudice and therefore, harm public interest. Therefore, legitimately acquired statutory rewards, i.e. intellectual property rights granting exclusive rights, should only be deprived in extraordinary circumstances. The CJEU followed this notion in IMS Health when it held: “[t]hat, in order to determine whether a product or service is indispensable for enabling an undertaking to carry on business in a particular market, it must be determined whether there are products or services which constitute alternative solutions, even if they are less advantageous, and whether there are technical, legal or economic obstacles capable of making it impossible or at least unreasonably difficult for any undertaking seeking to operate in the market to create, possibly in cooperation with other operators, the alternative products or services.”⁹

When all elements of the essential facilities doctrine test are cumulatively fulfilled, the refusal to license intellectual property rights under fair, reasonable and non-discriminatory terms constitutes an abuse of a dominant position which infringes the EU competition law, and therefore, a dominant undertaking will be sanctioned with a fine of up to 10% of the dominant undertaking’s annual turnover and obliged to license intellectual property rights regarded as the essential facility to other firms under fair, reasonable and non-discriminatory terms.

Notwithstanding the above, many issues arise with the application of the essential facilities doctrine test since the test is vague, lacks further case law interpretation in various industries and is thus encompassed with legal uncertainty.

Legal uncertainty also stems from the CJEU’s jurisprudence. Two divergent types of application of the essential facilities doctrine to intellectual property arise. First, a more stringent and narrow application of the doctrine to intellectual property rights that derives from the “traditional economy” was developed by the CJEU in cases MaGill and IMS Health, and second, a broader application of the doctrine to intellectual property rights emanating from the “new economy” (i.e. the IT sector with the presence of network effects) was developed by the General Court in Microsoft.

According to one commentator of the doctrine, by lowering the requirements of the essential facilities doctrine’s application to intellectual property rights, namely by interpreting elements of the test in a broader manner, the General Court has even established a new test which is applicable only to a whole new sector regarded as the new economy.¹⁰ Whether the Microsoft case established a new branch of the essential facilities doctrine concerning the new economy or had it revised the previous jurisprudence, is not possible to know. Thereby, it is for the CJEU to decide and clarify this issues in the future cases.

In conclusion, the essential facilities doctrine holds that dominant firms may incur competition law liability if they fail to provide access to their facilities under fair, reasonable and non-discriminatory terms in exceptional circumstances. Further, the exclusive right forms an integral part of the proprietor’s intellectual property right, thereby, the unilateral refusal to grant a license, even if it is the act of a firm holding a dominant position, cannot in itself constitute abuse of a dominant position, rather the infringement of EU competition law in this regard occurs only if all elements of the essential facilities test are cumulatively met. A different interpretation would mean that statutory incentives to promote creative works, innovation or to prevent market confusion would be gravely undermined. As a result, the essential facilities doctrine will likely seldomly apply to intellectual property rights in the EU; this notion is evidenced by the relative absence of recent relevant case law on the matter.

 ¹The essential facilities concept, OECD, Paris 1996, pp. 7.

 ²Joined Cases C-241/91 P and C-242/91 P, RTE and ITP v Commission, para. 50.

 ³Areeda, P. (1989). ESSENTIAL FACILITIES: AN EPITHET IN NEED OF LIMITING PRINCIPLES. Antitrust Law Journal, 58(3), pp. 842-844.

 ⁴See: Marquardt, P., & Leddy, M. (2003). THE ESSENTIAL FACILITIES DOCTRINE AND INTELLECTUAL PROPERTY RIGHTS: A RESPONSE TO PITOFSKY, PATTERSON, AND HOOKS. Antitrust Law Journal, 70(3); or Lipsky, A., & Sidak, J. (1999). Essential Facilities. Stanford Law Review, 51(5)

 ⁵Joined cases C-241/91 P and C-242/91 P., Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission of the European Communities.

 ⁶Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG.  

 ⁷Case T-201/04, Microsoft Corp. v Commission of the European Communities

 ⁸Lévêque, F. (2005). Innovation, Leveraging and Essential Facilities: Interoperability Licensing in the EU Microsoft Case. in F.Lévêque & H. Shelanski (eds.), Antitrust, Patents and Copyright. EU and U.S. Perspectives. Cheltenham and Northampton. pp. 104.

 ⁹Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, para. 28.

 ¹⁰Graef I. (2011), TAILORING THE ESSENTIAL FACILITIES DOCTRINE TO THE IT SECTOR: COMPULSORY LICENSING OF INTELLECTUAL PROPERTY RIGHTS AFTER MICROSOFT, Cambridge Student Law Review, 7(1).

By Matej Brumec, LL.M, Junior Associate, Rojs, Peljhan, Prelesnik & partners