(No) Access to the Standard under Art. 102 TFEU

The paper addresses the question of accessibility of de jure standards considering a contractual FRAND obligation based on the FRAND commitment, as well as Art. 102 TFEU. It shows that the contractual entitlement to FRAND licensing negotiations is required for the standardisation process to be in compliance with Art. 101 TFEU. Still, the contractual FRAND obligation may vanish in consequence of an SEP transfer. Art. 102 TFEU cannot compensate for that loss because its applicability depends on the existence of a dominant position. Although lock-in effects are to be considered within the market definition, which can widen the provision’s scope of applicability in SEP-related cases, the prohibition of an abuse of dominant position is not capable to ensure effective access to the standard sufficiently. The proof of a dominant position may require detailed market analysis, which is not in accordance with the requirement of effective access. On the one hand, implementers who are already locked into a standard are exposed to the risk of patent holdup. On the other hand, implementers who have not yet decided to implement the standard may hesitate to do so in order not to risk patent holdup. This impairs fast and widespread dissemination of standards.