I hvilket omfang kan en nægtelse af at meddele licens til en immaterialret, udgøre et misbrug af en dominerende stilling, jf. TEUF art. 102?

Hatice Ezgi Onurlu

Studenteropgave: Kandidatafhandlinger


This Master Thesis deals with “the conflicting area between EU competition law – including TFEU art. 102 – and intellectual property rights” and whether these two laws might be in conflict with each other. The legal analysis aims to determine when a refusal to license an IPR may result in an abuse of the dominant position which the licensee possesses. Six case laws have been analyzed with the aim to define the preconditions set out and applied by the Court when reaching their decisions. Since the preconditions have changed over time and has been extended, it is still doubtful whether these are cumulative and exhaustive. This has created confusion about what constitutes an abuse of dominant position. The different preconditions set out in the case laws are as follows: 1) a facility/product must be indispensable to the competitor before he can compete in the downstream market, 2) the refusal is likely to eliminate the competition, 3) the refusal prevents the emergence of a new product and 4) the refusal is not objectively justified. Meeting all the preconditions will result in an abuse of dominance, when the licensee refuses to license its IP unless the company can be exempted from its behavior through an objective justification. The outcome of the legal analysis has led to the economic problem namely how these terms should be understood and explained from an economic evolutionary perspective. This economic problem is raised because there is a need to explain the legal preconditions from a social point of view and then determine the various advantages and disadvantages / consequences that may be the case. The “Joseph Schumpeter approach” has been applied to serve as a support to answer the economic problem. Patents have been analyzed from positive and negative angles with the aim to determine the importance of incentives to invest in research and development, as it, at the very end, benefit the social- and economic development. Furthermore, the importance of the transmission mechanism together with the selection- and variation mechanism have been the main focus through the whole economic analysis. The efficiency gains weights very high what regards the dominant undertaking’s behavior why the results of the dominant undertaking’s behavior must be efficient. Last but not least, it is important to stress that the dominant firm shows a behavior which shall take the greatest interests of the social welfare. The company shall not take his rights for granted and use it only for private purposes as the right is granted in connection to rewarding the company for its innovative creation which is in favor of the consumers, competitors and the effective competition in the internal market.

UddannelserCand.merc.jur Erhvervsøkonomi og Jura, (Kandidatuddannelse) Afsluttende afhandling
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