European competition law and intellectual property rights—a new analysis

Abstract

The article examines the controversial relationship between EU competition law and intellectual property. The analysis is carried out through a synthesis of the case law, taking into due consideration that the law has developed piecemeal without any explicit framework or general principle, and that the Court has never explained the principles comprehensively. More specifically the article concerns the issue of compulsory licensing of intellectual property rights as a remedy to an “additional abusive conduct”, ex Article 102 TFEU, and the difficult application of that remedy in some specific cases. The conclusion is that, in a case in which a complainant seeks a compulsory licence of an intellectual property right, it needs first to prove that some identifiable abuse has been committed, to show that harm to consumers has been caused, and then to show that a compulsory licence is the appropriate remedy for that abuse. This interpretation seems essential if the case law is to be understood in a consistent and rational way.