European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

EU law may not challenge the existence of a statutory monopoly recognized to the proprietor of an intellectual property right . The EU authorities traditionally assert that although the existence of an exclusive right may not be challenged , the conditions of the exercise of the right may, by contrast, be held contrary to EU competition law, in particular where the exclusive right manifests itself …

Intellectual property rights and free competition

EU law may not challenge the existence of a statutory monopoly recognized to the proprietor of an intellectual property right . The EU authorities traditionally assert that although the existence of an exclusive right may not be challenged , the conditions of the exercise of the right may, by contrast, be held contrary to EU competition law, in particular where the exclusive right manifests itself as “the subject, the means or the result of a restrictive practice” .

The right of the holder of a patent cannot therefore be examined under Article 101 TFEU if there is no concerted behavior . This is not the case however where the patent holder agrees to a “pay for delay” settlement with competitors which is not objectively necessary for the protection of his IP rights, insofar as that outcome could have been achieved by bringing actions for infringement or by negotiating an amicable settlement with them without causing their exclusion from the market . Thus, while the conclusion, by the holder of a patent with a party allegedly infringing that patent, of a settlement agreement that does not exceed  the scope and duration of remaining validity of the patent does constitute an expression of the intellectual property right of its holder, that patent does not permit its holder to enter into contracts that are contrary to Article 101 TFEU or to adopt concerted practices that present a sufficient degree of harmfulness to be classified as a restriction by object . Likewise, the actions of a software manufacturer aimed at preventing the importation of copies of its products do not constitute an agreement or a concerted practice with its dealers since they are merely the expression of the exercise of copyrights on those products . The obligation for the license-holder to respect the know-how of the licensor is not anticompetitive since it is not exclusive but only ancillary to the principal object of the agreement and is necessary to ensure technically satisfactory exploitation of the licensed technology . Likewise, the imposition on the licensee of an obligation to pay a royalty for the use of a patented technology for the entire period during which that agreement was in effect, in the event of the revocation or non-infringement of patents protecting that technology, is not contrary to Article 101 TFEU insofar as the licensee is free to terminate that agreement by giving reasonable notice .  In all cases, the rule of reason validates restrictions on competition that are justified by the quality of the products , the preservation of the goodwill of a trade mark , the protection of the secrecy of the know-how  or the destination of plant varieties . Lastly, where the license is open and limited to the legal relationship between the license-holder and the owner of the right, exclusivity is not in itself incompatible with Article 101 TFEU . 

By contrast, the obligation to obtain the licensor's prior approval to put on the market a product not covered by the license but supplementary to the patented product , to obtain products not covered by a patent exclusively from the licensor  or to pay royalties even after the expiry of a patent , the granting of exclusive know-how and patent licenses to a joint venture, along with a prohibition from granting sub-licenses without the two founding undertakings' prior approval , a clause in a license agreement prohibiting the licensee from manufacturing and marketing the contract products after the breaking off of the relationships, despite the expiration of the patent  or a patent dispute settlement agreement which contains non-challenge clauses in respect of patents and non-marketing clauses in respect of products, which are, in themselves, restrictive of competition , fall within the prohibition of Article 101 TFEU. Likewise, a trade mark license that grants the license-holder the exclusive right to use the trade mark in a Member State, and that appoints him sole distributor , or an exclusive license agreement concluded between a holder of intellectual property rights and a broadcaster which oblige the broadcaster not to supply decoding devices giving access to the right holder's programs in order for them to be viewed outside the territory covered by the agreement  provide absolute territorial protection in violation of the competition rules . A know-how license cannot be exclusively granted for the whole territory of a Member State to only one undertaking without violating Article 101 . Furthermore it is not lawful in connection with a research and development agreement to prevent the granting of sub-licenses to third parties .

See Article 345 TFEU, pursuant to which "The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership".

See Cases 15/74 and 16/74 Centrafarm BV and others v Sterling Drug [1974] 1147, LawLex200400003277JBJ.

Commission Decision No 88/563/EC of 13 October 1988, Delta Chemie/DDD, LawLex200500005412JBJ.

Commission Decision No 78/253/EC of 23 December 1977, Campari, LawLex200400002804JBJ; No 88/143/EC of 22 December 1987, Rich Products/Jus-rol, LawLex200500005329JBJ; No 88/563/EC of 13 October 1988, Delta Chemie/DDD, LawLex200500005412JBJ.

Commission Decision No 1999/6/EC of 14 December 1998, Sicasov, LawLex200500004747JBJ.

Case 258/78 Nungesser v Commission [1982] ECR 2015, LawLex200500004104JBJ.

Case 193/83 Windsurfing International v Commission [1986] ECR 611, LawLex200400003547JBJ.

Commission Decision No 79/86/EC of 10 January 1979, Vaessen/Moris, LawLex200500005288JBJ.

Commission Decision No 76/29/EC of 2 December 1975, AOIP/Beyrard, LawLex200400002391JBJ.

Commission Decision No 88/555/EC of 11 October 1988, Continental/Michelin, LawLex200500005411JBJ.

Case 320/87 Ottung v Klee & Weilbach and others [1989] ECR 1177, LawLex200500005413JBJ.

Case T-679/14 Teva UK, Judgment of 12 December 2018, LawLex201900002064JBJ, which rules out the restrictive nature of these clauses if their inclusion is justified by the parties' recognition of the validity of the patent and the infringing nature of the generic products concerned, the anticompetitive nature of the settlement agreement presupposing both an inducement for the generic company and a correlative limitation of its efforts to compete with the originator company.

Case 40/70 Sirena v Eda [1971] ECR 69, LawLex200400002879JBJ; Case 86/75 EMI Records v CBS Grammofon [1976] ECR 871, LawLex200400002898JBJ; Case 144/81, Keurkoop v Nancy Kean Gifts [1982] ECR 2853, LawLex200500004094JBJ.

Commission Decision No 77/129/EC of 21 December 1976, Theal/Watts, LawLex200500004047JBJ; Case 28/77 Tepea v Commission [1978] ECR 1391 LawLex200500004033JBJ; see also, for a plant variety right, Commission Decision No 78/823/EEC of 21 September 1978, Breeders' rights - maize seed, LawLex200500004577JBJ; Case 258/78 Nungesser v Commission [1982] ECR 2015, LawLex200500004104JBJ.

Case C-403/08 Football Association Premier League and others, LawLex201100001693JBJ.

See also Case T-873/16 Groupe Canal + SA, Judgment of 12 December 2018, LawLex201900000325JBJ, holding that although a copyright holder may grant to a sole licensee the exclusive right to broadcast by satellite subject matter protected by such a right, during a specified period, from a single Member State of broadcast or from a number of Member States, clauses in the agreement may not, without infringing Article 101(1) TFEU, provide that the holder is required to prohibit all its contracting partners on the EEA market from making passive sales to geographic markets situated outside the Member State in respect of which it grants them an exclusive license.

Commission Decision No 94/770/EC of 6 October 1994, Pasteur Mérieux-Merck, LawLex200500004793JBJ.

Commission Decision No 91/38/EC of 12 December 1990, KSB/Goulds/Lowara/ITT, LawLex200500005347JBJ.

Case 24/67 Parke, Davis & Co. v Probel and others [1968] ECR 81, LawLex200500005415JBJ.

Case T-472/13 H. Lundbeck A/S, Judgment of 8 September 2016, LawLex201600001398JBJ; regarding patent dispute settlement agreements, see also Case T-680/14 Lupin Ltd, Judgment of 12 December 2018, LawLex201800001964JBJ; Case T-682/14 Mylan Laboratories Ltd, Judgment of 12 December 2018, LawLex201800001932JBJ, finding that although an agreement may have no negative impact on competition, this is not the case of an agreement by which a generic company accepts restrictions on its ability and incentives to compete in return for a value transfer, either in the  form of significant sums of money or another significant inducement, containing clauses prohibiting patent challenges and clauses prohibiting the marketing of products which infringe those patents; the existence of an inducement for the generic company to agree to those clauses permits the conclusion that there is a restriction by object even if there is a genuine dispute, the scope of the non-marketing and non-challenge clauses does not exceed that of the patent at issue, and that patent could legitimately be regarded as valid  by the parties to the agreement at the time it was adopted.

Case C-614/16 P Merck KGaA et Generics (UK) Ltd, Judgment of 25 March 2021, LawLex202100001867JBJ.

Case T-198/98 Micro Leader v Commission [1999] ECR II-3989, LawLex200400002965JBJ.

Commission Decision No 90/186/EC of 23 March 1990, Moosehead/Whitbread, LawLex200500005342JBJ; No 90/410/EC of 13 July 1990, Elopak/Metal Box - Odin, LawLex200500004552JBJ.

Case C-567/14 Genentech Inc., Judgment of 7 July 2016, LawLex201600001250JBJ.

Commission Decision No 78/253/EC of 23 December 1977, Campari, LawLex200400002804JBJ, for a clause imposing on the license-holder to follow the licensor's instructions relating to the manufacture.

European Competition Law

163. Intellectual property rights and free competition

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163. Intellectual property rights and free competition

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Les décisions de justice citées dans ce paragraphe :

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