The ‘Unexceptional Circumstances’ Test: Implications for FRAND Commitments from the Essential Facilities Doctrine Under Article 102 TFEU

Martin Angelov

4/30/2014
(Original Publish Date: 7/15/2013)

Concerns over the global expansion of intellectual property (IP) rights and the notorious practice of tactical maneuvering on behalf of dominant undertakings in standard setting processes have placed talks about “fair, reasonable and nondiscriminatory” (FRAND) licensing terms at the heart of the current competition law regime. The acronym FRAND, also referred to as RAND in the United States (without the “fair” requirement), has been infamously difficult to define especially in relation to compulsory licensing and royalties determination. The concept gained excessive attention with the start of the Microsoft litigation in 2004. There, the EU competition authorities investigated, inter alia, whether the software giant had provided access to its interoperability information, i.e. its essential facility, on “fair, reasonable and nondiscriminatory” terms. Despite the wide attention paid to the issue in the legal and academic circles, clarifications from the courts and the Commission on the actual meaning of a FRAND commitment have been rather limited. Due to its apparent vagueness and lack of a well-established method for calculating licensing fees, the existing literature has been predominantly economics-oriented.