IPR - the intangible asset that confuses the European Union

Abstract: This thesis will be concerned with one of the main concerns and highly discussed topics in the relationship between Article 102 TFEU and Intellectual Property Rights. Predominately, it will focus on the enforcement of IPR(s) as an abusive practise of dominance and whether a dominant undertaking has the ability to protect its IPR by refusing to licence its IPR to a third party. The main purpose will be to analyse the legal framework from previous case law and the development of ‘exceptional circumstances’ doctrine. The thesis will argue that the ECJ and the General Court have expanded its flexibility by widening the doctrine to an extent that has contributed to uncertainty in its application. Additionally, the development of a case-by- case approach in the most recent judgment in Microsoft has left some unanswered questions, which may have a significant impact on future cases. Lastly, there has been a shift in the approach of consumer harm in the cumulative criteria, which illustrates the attempt to advance the effect of the doctrine by considering it as a key factor in the assessment of refusal to licence. The focus of this thesis will be on the development of the doctrine stretching from Volvo v. Veng leading up to Microsoft, with support from the opinions and views of scholars and debaters on the various cases, and how each case have impacted the following judgments. In addition to this, the thesis will show that as the law stands today, there is an imbalance between the two legal areas. Since, the more the EU Authorities continue to widen the ‘exceptional circumstances’ doctrine the more superior will Competition law become against IPR. Subsequently, the thesis will argue that the EU Authorities’ approach in protecting the consumer welfare could potential have the opposite effect on the inventors by not acknowledging that innovation is more than money. With that said, it is concluded that the European Courts’ judgments, in the cases within, have contributed to an inconsistent application of the ‘exceptional circumstances’ that has resulted in the law becoming imbalanced, inconsistent and unclear.