Damien Geradin, Hee-Eun Kim, Apr 30, 2012
The Free Trade Agreement between the European Union (“EU”) and Korea has been provisionally in force since July 1, 2011, nearly four years after negotiations started in May 2007. The Agreement removes tariffs and other trade barriers in an unprecedented manner, covering virtually all products. EU exporters of pharmaceutical products, auto parts, and agricultural goods are expected to be the primary beneficiaries of the Agreement. At the same time, Korean manufacturers of cars, ships, and high-tech products, such as mobile communications devices, are planning to increase their exports to the EU market. For instance, Hyundai Motor Company, the world’s fourth-largest carmaker, announced its goal of increasing European sales in 2012 by 15.4 percent.
Although Korean high-tech companies may use this opportunity to expand their business in the EU, significant regulatory risks may arise as they navigate through the complex EU legal framework; in particular, competition rules. In this respect, striking the right balance in dealing with emerging issues at the intersection between competition and intellectual property rights (“IPRs”) can present serious challenges. Taking the experience of Korean technology companies as an example, this article briefly reflects on competition law issues which innovative companies face when enforcing certain of their IPRs against infringers. In this connection, a hotly debated issue before the European Commission concerns the compatibility of certain uses of standard-essential patents (“SEPs”), i.e. patents that are essential to implement technical standards, with EU competition law.