Standard, estandarización y aplicación del artículo 102 TFUE a los conflictos sobre licencias relativas a derechos de propietad intelectual

The standardization, de jure as well as de facto, gives rise to critical issues also in the field of antitrust law. Especially in recent years, the European case law and that of some member states have in particular dealt with the violation of the so-called FRAND commitments, which are undertaken by the holders of those patents that become essential for the implementation of the selected standard (Standard Essential Patents - SEPs). The EU Commission and the Courts have then several times applied the provisions on abuse of a dominant position to the attempt of the SEPs holders to prevent access to these patents by subjects that need them to operate in the downstream markets. The essay traces the development of European law dealing with the refusal to deal, identifying similarities and differences with the issues currently on the agenda in relation to refusal of SEPs, and expresses some doubts about the systematic coherence of the solutions adopted.