This article is an opinion piece by current students or alumni of the College of Europe. The views expressed are those of the authors and do not necessarily reflect the opinions or positions of the College of Europe. Responsibility for the content lies solely with the authors.

By Giulia Galletti, Anna Parkhomenko, and Anna Haesaert

In this interview, Mario Siragusa, Senior Counsel at Cleary Gottlieb Steen & Hamilton and Visiting Professor at the College of Europe, shares his perspective on the evolving tensions between the protection of intellectual property rights and competition law, with a particular focus on standard essential patents (SEPs) and FRAND licensing. The discussion also addresses the existing legal fragmentation across EU Member States, the increasing role of IP in merger control, and emerging challenges.

Question One: Where do you see the main tension points between IP protection and Competition today?

Answer: Today, issues related to refusal to license remain among the most significant areas of overlap between intellectual property law and competition law. In particular, two main streams of decisions can be identified: first, there is an ongoing debate concerning standard-essential patents (SEPs); second, there is a broader discussion on refusal to license outside the SEP context, particularly in situations where access to technology is necessary.

In the context of SEPs, several important cases have emerged, including Motorola, Samsung, and Huawei. These cases raise the question of how to address the market power held by a company whose technology has been accepted as an essential part of a standard. The European Commission has taken the view that SEP holders may acquire a dominant position and they do therefore fall within the scope of Article 102 TFEU.

More recently, there have been discussions, focused on the application of FRAND terms. SEP holders are required to license their technology on fair, reasonable, and non-discriminatory terms. In the Huawei case, a specific framework was established, setting out the steps that both the licensor and the potential licensee must follow in order to reach agreement on the licensing terms. The Commission initially proposed the SEP Regulation but ultimately withdrew the proposal. It is unclear whether this decision reflects a broader trend towards deregulation or was driven by the significant criticism the proposal received. Nevertheless, some of its elements have been addressed in the revised Technology Transfer Block Exemption Regulation. The accompanying Guidelines contain important developments, particularly with regard to patent pooling agreements and the possibility of licensing negotiation groups.

Concerning other competition enforcement areas, IP issues remain highly important in merger control. There is a growing number of cases in which the Commission has assigned considerable importance to IP rights, such as the Microsoft/Activision merger, and this trend is expected to continue as the Commission assesses further transactions, including the proposed Paramount/Warner Bros. merger. Finally, there is currently a significant debate surrounding copyright in the context of AI, particularly concerning the use of copyrighted material as an essential input for training AI models.

These are the sectors in which the most significant debates concerning IP rights and competition law are currently taking place.

Question Two: In relation to SEPs, how does the EU approach to the intersection between IP and competition differ from that of the US or China?

Answer: In Europe, antitrust law plays a significant role in addressing issues related to SEPs. This approach has been heavily criticized. Critics argue that these problems should not necessarily be resolved through the application of competition rules, but rather through traditional intellectual property or contractual principles. However, in Europe, the view that competition law should play an important role has prevailed, as reflected in the case law. Following the Huawei judgment, national courts now play a key role, as they are responsible for applying the principles established in Huawei within their respective national legal frameworks.

The United States adopts a very different approach. There, contractual principles have prevailed in addressing these issues, primarily through private actions between the parties rather than through the application of antitrust rules. The US courts tend to treat FRAND commitments as contractual obligations undertaken within the framework of a standard-setting organisation. These commitments may be enforced by third parties with a legitimate interest in ensuring that FRAND terms are applied in a fair and equitable manner.

Thus, the contractual dimension has prevailed in the discussion. This is also characteristic of the US approach to intellectual property rights, where courts have traditionally been more protective of IP rights. It should also be noted that recent cases suggest a trend toward enforcement in favour of patent holders, including actions against large technology platforms. For instance, where allegations are made against major tech companies that have developed AI technologies without providing adequate compensation to patent holders, the Department of Justice has shown a willingness to intervene in support of those patent holders.

China also takes a different approach with regards to antitrust law, generally using it in a more strategic manner. In some respects, Europe has also begun to use antitrust in a more strategic way. Overall, China has taken a stricter stance on the limitations and availability of injunctions. It has also been more willing to impose limits on the aggregate royalties payable by users of SEPs. From a substantive perspective, China’s approach can be seen as lying between that of the EU and the US, though it is generally closer to the EU model. Some of the proposals contained in the now-withdrawn SEP Regulation can be observed in the Chinese approach, albeit adapted to reflect its distinct strategic orientation.

Against this background, it may be asked whether China’s Civil Code - drawing in part on civil law traditions influenced by Roman law sources such as the Codex Justinianus - helps explain its closer alignment with the European approach to antitrust enforcement, despite differing underlying political objectives. This historical foundation may indeed have played a role. More broadly, the European model of competition law has exercised considerable international influence, with many jurisdictions drawing inspiration from it rather than from the American approach. One possible explanation is that the European system entrusts significant powers to administrative authorities, enabling them to investigate and adjudicate cases within a unified framework - an institutional design that may be seen as particularly compatible with the governance preferences of jurisdictions such as China.

Question Three: Could the EU’s approach to FRAND reduce Europe’s attractiveness as a venue for standard-setting and innovation?

Answer: One of the problems in this area in Europe is that the Huawei framework has led to different outcomes across national courts. In this sense, there is a degree of legal fragmentation, as not all Member States apply the Huawei principles in the same way. The withdrawn proposal for the SEP Regulation sought to address this issue, however, it ultimately did not succeed.

In essence, challenges surrounding SEPs and FRAND arise globally and are not unique to Europe. Nevertheless, greater clarity and uniformity in the application of FRAND within the Member States would be desirable, as the current discrepancies create practical difficulties. To achieve this, further case law from the Court of Justice would be beneficial, particularly if national courts were to make more preliminary references. In this way, a greater degree of uniformity could be established. Personally, I would favour the development of case law over additional regulation.

Question Four: Has FRAND evolved from a voluntary commitment into a form of compulsory licensing through competition law?

Answer: FRAND was originally a contractual commitment of a voluntary nature. However, this commitment has become increasingly regulated through case law. To some extent, the principles established in Huawei provide the parties with a degree of flexibility, allowing for negotiation between them. Therefore, it would not be accurate to describe the system as compulsory; rather, it lies somewhere in between. It seeks to resolve disputes through a structured and sophisticated procedure, without dictating the outcome. It sets out the steps that must be followed, but the result is not predetermined. Certain aspects, however, are subject to close judicial supervision. For instance, a refusal to license may trigger the application of Article 102 TFEU. Courts have even shown a willingness to determine FRAND rates. Nevertheless, ultimately, it all depends on the outcome of the negotiations between the parties.

Question Five: If you could change one aspect of EU competition policy as it relates to intellectual property, and more broadly to recent developments such as Google Android and NVIDIA/Run:ai, what would it be, and why?

Answer: Regarding the NVIDIA/Run:ai case, my position, particularly following the Illumina/Grail judgment, has been that it represents another attempt by the Commission to bypass the Court of Justice’s ruling in Illumina by relying on Article 22 of the Merger Regulation to review below-threshold transactions. It remains to be seen how the Court will ultimately decide. The facts in NVIDIA/Run:ai differ from those in Illumina/Grail, particularly due to the use of national call-in powers. Nevertheless, in my view, the most appropriate response after the Illumina/Grail decision would have been to pursue a legitimate intervention through the legislative process, introducing a new rule to address below-threshold transactions. The proliferation of call-in powers is likely to continue, as many Member States are considering the introduction of similar systems. This will create greater uncertainty and increase notification obligations, which is against the original objectives of the Merger Regulation.
Another problematic aspect arises from the Google Android case, where the Court attempted to distinguish between open and closed infrastructures. While such a distinction is understandable, the key question, raised by the Italian Council of State, was whether a system of prioritisation should be established. In practice, platforms are confronted with a large volume of requests on a daily basis, and requiring them to respond immediately to all of them may be unrealistic. In this context, where a refusal is not strategic, it may simply reflect limited demand at a given time. For example, in Italy, the relatively low number of electric vehicles meant that such services were not a priority for the platform. Accordingly, there should be clearer principles governing how platforms prioritise competing requests.

About the Authors

Mario SIRAGUSA

Mario Siragusa is a Senior Counsel at Cleary Gottlieb Steen & Hamilton, based in the Rome office, and spends a substantial part of his time in the Brussels office.  
He focuses on corporate and commercial matters and he specializes in EU and Italian competition law and complex commercial litigation. He appears frequently before the European Court of Justice, the General Court of the European Union, the Directorate General for Competition of the European Commission, as well as the Italian Antitrust Authority and Italian civil and administrative courts. He lectures regularly at conferences throughout the United States and Europe and has published numerous articles in U.S. and European legal journals. He is a professor at the College of Europe in Bruges. President of AIGE, Associazione Italiana Giuristi Europei (Italian Association of European Jurists), since 2021.

Giulia GALLETTI

Giulia Galletti is an LL.M. candidate in European Legal Studies at the College of Europe. She holds a Master's degree in Law from the University of Bologna and an LL.M. from King’s College London, and has been admitted to the Italian Bar.

She previously trained at an international law firm and completed a Blue Book traineeship at the European Commission (DG COMP). Her research interests include Competition Law and Economics, Financial Services, and International Trade.

She currently serves as President of the Competition Society at the College of Europe.

Anna  PARKHOMENKO 

Anna Parkhomenko is an LL.M. candidate in European Legal Studies at the College of Europe. She holds an LL.M. from the Université libre de Bruxelles and is finalising her Master’s in Belgian Law at the same university in parallel with her studies at the College of Europe, in order to qualify for admission to the Brussels Bar. She previously worked at an international law firm and completed a Blue Book traineeship. Her research interests include competition law and economics, as well as digital law. She currently serves as Director General of the Competition Society at the College of Europe.

Anna HAESAERT

Anna Haesaert is an LL.M. candidate in European Legal Studies at the College of Europe. She holds an LL.M. from Maastricht University and is registered in parallel with the College in the Master's in Belgian Law at the KU Leuven. She previously completed traineeships with an in-house legal counsel at a world-leading R&D hub in nanoelectronics and digital technologies, and in a Belgian law firm. Her research interests include Competition Law and Intellectual Property. She is part of the board of the Competition Society of the College of Europe.