AKKA/LAA, Coty, Hoffmann La Roche II and Others: A Survey of Cases at the Intersection between Competition Law and IP Law in the Past Year

Abstract

This Survey reviews EU competition law developments involving consideration of intellectual property (‘IP’) rights in the year to October 2017. The cases reviewed cover: (i) the application of excessive pricing rules to copyright collecting societies (AKKA/LAA, judgment of the CJEU); (ii) the competitive relationship between licensor and licensee and agreements about the presentation of scientific information in the context of second medical use (Hoffmann La Roche II, AG’s Opinion); (iii) brand owners’ prohibitions on the use of online platforms (Coty, AG’s Opinion); (iv) refusals to license interoperability information (Contact Software, judgment of the General Court); (iv) licensing agreements which limit technical development (Honeywell/Du Pont, Commission case closure); (v) the relevance of patents and innovation in a large-scale merger (Dow/Du Pont, Commission merger decision); (vi) IP aspects of the Commission’s final report in the E-Commerce Sector Inquiry. On 14 September 2017, the CJEU handed down a relatively rare judgment on the criteria to be applied when assessing whether a price charged by a dominant undertaking is excessive and unfair under Article 102 TFEU. The judgment, and the prior Opinion of AG Wahl, tackles the difficult question of how this area of competition law should be applied in the context of intangible rights.