Remedies

Remedies for violations of competition law involving IP

What sanctions or remedies can the competition authorities or courts impose for violations of competition law involving IP?

Remedies may involve fines by the EU Commission or the FCO. Civil courts may declare IP agreements or certain terms of IP agreements invalid. Aggrieved parties have claims to damages and, in cases of abuse of dominance, may claim a licence to IP rights on FRAND terms.

Competition law remedies specific to IP

Do special remedies exist under your competition laws that are specific to IP matters?

There are no IP specific remedies. The general rules apply.

Scrutiny of settlement agreements

How would a settlement agreement terminating an IP infringement dispute be scrutinised from a competition perspective? What are the key factors informing such an analysis?

Agreements that settle IP disputes are subject to review under article 101(1) of the TFEU and section 1 of the GARC. The FSC has clarified that whether or not a settlement has the effect of restricting competition will depend on whether or not the parties to the agreement are actual or potential competitors on the relevant market. The right to prohibit the use of a certain technology, design or trademark as such will not make the parties competitors (FSC, docket KZR 92/13 - Pelikan/Pelican). However, any express or implied restriction of the commercial conduct of a party to a settlement that goes beyond what the IP owner could possibly claim under the scope and duration of protection of its IP right will raise concerns under competition law. In particular, settlement agreements that involve financial considerations to keep or delay a party from entering the market will be considered anticompetitive and void under article 101(1) of the TFEU and section 1 of the GARC (see question 24).

Obligations to not challenge the validity of an IP right are usually immanent to IP settlements and, thus, permissible to the extent that they do not serve to maintain a right that is clearly invalid. Paragraphs 234 et seq of the guidelines on technology transfer agreements (OJ 2014, C89/3) provide for additional guidance on settlement agreements.