The “Exceptional Circumstances” Test: Implications for Frand Commitments from the Essential Facilities Doctrine Under Article 102 TFEU

Introduction:

"While the first section of the article sets the tone with a brief overview of the problematic relationship between competition law and intellectual property regulation, it also assesses the above-mentioned link connecting a FRAND violation and a refusal to license an essential facility particularly in the innovation sector. The focus of the second section is on the “exceptional circumstances” test, the application of which is examined chronologically. In exploring the landmark decisions on the refusal to license an IP right, this article first pinpoints key rationales behind the rulings of the competition authorities, then observes a shift in the presumption of legality of compulsorily licensing. It further discusses the excessively aggressive application of Article 102 TFEU and the shift to false positives on behalf of the authorities in their attempt to provide a fair and open competitive process. Before assessing the observations made, the article focuses in its third section on the specific references to “fair, reasonable or non-discriminatory” in the decisions by the Commission and the rulings of the EU courts."