Antitrust Enforcement and Civil Rights: SEPs and FRAND Commitments

This article is part of a Chronicle. See more from this Chronicle

Bo Vesterdorf, Aug 12, 2014

The views expressed in this article are inspired by two recent decisions taken by the European Commission on April 29, 2014, the Motorola and the Samsung decisions. These decisions are the first Commission decisions concerning competition law enforcement in relation to standard essential patents. In essence the Commission has found that, in certain circumstances, seeking and enforcing an injunction may constitute an abuse of dominant position. This raises important constitutional issues with regard to civil rights.

For centuries it has been a fundamental element of democratic countries governed by the rule of law, such as the Member States of the European Union, that, if private parties cannot agree on issues of a legal character, they will have access to a court which will decide in a final and binding manner on the dispute between the parties. They would not be turned away by the court unless there was no legal issue to decide upon.

This right of access to a court is a fundamental right enshrined in Article 6(1) of the European Convention of Human Rights and in Article 47 of the Charter of Fundamental Rights of the European Union. Neither of these two articles recognizes any exception to the right of access to court. It is in principle an absolute right and it is only for the national court in question to decide whether the case brought shall be admitted or dismissed; a dismissal may be decided by the national court if, for example, it finds the application vexatious or manifestly unfounded. It follows from this fundamental civil right that a person who has brought a case before a national court should not be prosecuted or punished for doing so, neither by administrative authorities nor in principle by the courts. This is a fundamental principle of law also within the area of EU competition law. The two recent decisions by the Commission do not, however, seem compatible with that principle.