The Emperor’s Clothes Laid Bare: Commitments Creating the Appearance of Law, While Denying Access to Law
Philip Marsden, Oct 15, 2013
This article examines how the Article 9 commitments procedure under EC Regulation 1/2003 is increasingly being used to create policy under the guise of law and, in practice, to prevent courts from effectively providing review of, and guidance on, new areas of law. This problem is particularly acute in fast-moving high technology markets and is perfectly illustrated by the current standard-essential patent cases: Do commitments given to a competition agency by an individual company on the basis of a particular fact-pattern create a new abuse for SEP holders to seek injunctive relief? Are we seeing over-reaching by the executive branch based on an as-yet unproven and controversial theory of harm? Does denying litigants their day in court, albeit in very particular circumstances, violate the rule of law?