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FRAND Licensing Levels Under EU Law

This paper investigates whether EU or national law provides legal authority to impose a direct or indirect obligation on Standard Essential Patent (“SEP”) holders to license at all levels of the value chain, including...

Traditionally, unfair pricing cases were considered a “taboo” in EU competition policy. In recent years, however, the European Commission and a number of National Competition Authorities have investigated unfair pricing cases. Therefore, national and EU courts had the opportunity to rule on unfair pricing cases, by thus clarifying the legal test. The paper shows that United Brands is not the “only” legal test to assess unfair pricing cases; the CJEU has endorsed alternative “benchmarking” methods. Recent jurisprudence has also introduced some “safeguard tools” to minimize the risk of false negative errors, such as the requirement for the competition agency to verify its findings under “multiple” tests and the possibility for the dominant firm to put forward “objective justifications”. The paper argues that the legal test of unfair pricing cases is becoming “clearer”, by thus contributing to a further shift from the traditional non-enforcement paradigm.

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