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Abstract

The refusal to disclose trade secrets was scrutinized by the CFI in Microsoft under the «exceptional circumstances» test without a deeper analysis of the nature of trade secrecy protection and dynamic competition in Schumpeterian markets. This study explores trade secrecy protection in more detail and - in an effort to promote innovation in cases of compulsory access to a standard technology covered by a trade secret - offers a new legal test. The test suggests the criteria for assessing abusive conduct (Art. 102 TFEU) in Schumpeterian markets which need to be kept contestable and takes into account the dual nature of competition: competition for the market and competition within the market - the analysis which was missed by the CFI and the European Commission due to shortages of on their part applied «leveraging theory». Going beyond Microsoft, this study analyses Art. 102 TFEU and, more broadly, the goals of European competition law in light of trade secrets and dynamic competition.