Jurisdiction(s):
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Abuse of Dominance and IP: Article 102 TFEU on Essential Facilities, FRAND/SEPs, Tying, Patent Grant Abuse, Pharmaceutical Markets, Pay‑for‑Delay, Market Definition and Network Effects

Published by a LexisNexis Competition expert

Practice notes

Intellectual Property Rights (IPRs) give proprietors the practical ability to bar others from exploiting the protected subject matter. Blocking, or even threatening to block, third parties in this manner usually raises no issues under competition rules. Yet, in the relatively rare scenario where the IPR holder occupies a ‘dominant position’—that is, economic strength allowing it to operate, to a large degree, without effective competitive constraints—use of such exclusionary powers can sit uneasily with competition law. IPRs appear in several guises (eg trade marks, copyright, patents) and frictions may surface in multiple settings. Flashpoints most often involve patents and software copyright.

Abuse of dominance under Article 102 TFEU

EU case law recognises that dominance carries a special responsibility for the dominant undertaking. That responsibility obliges it to avoid forms of rivalry that are not ‘on the merits’. Because the contours of this notion are indistinct, the range of potential abuses is effectively open-ended. Telling anti-competitive exclusion from ‘ordinary’ reliance on the exclusionary rights of IPRs is often highly problematic. The inquiry focuses not on ‘form’ but on ‘effect’. Accordingly, the focus moves past legal form, scrutinising outcomes and the competitive constraints present within the particular context at issue. For example, a...

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Web page updated on 21/05/2026

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