The Treatment of Exclusive Grant Backs in EU Competition Law

Abstract

This article examines the competition law and competition economics of grant back clauses within the EU following the adoption of the 2014 TTBER1 and resulting changes in the assessment of grant back clauses. Moreover, the article discusses the reasonability of the new European approach adopted with the 2014 TTBER. This is done by comparing the European approach to economic theory, while also including how grant back clauses are dealt with in practice, when seeking to enforce agreements before the courts and in arbitration in Denmark. The focus will be on exclusive grant back clauses, while intermittingly mentioning assignment back clauses and non-exclusive grant back clauses. The analysis of the subject set-out above will begin in Section II by addressing the European position on grant back clauses, while discussing how they and other excluded restrictions are dealt with in practice when agreements are subject to enforcement before the courts in Denmark. Section III discusses the reasonability of the European position, while including aspects of US law. Section IV is the conclusion of the paper.