Short answer
Owning intellectual property, holding a dominant position and refusing a licence are not, without more, unlawful. Article 102 TFEU can exceptionally make a dominant undertaking's refusal abusive where access to protected material is indispensable, the refusal is liable to eliminate effective competition on a neighbouring market, prevents a new product or technical development for which there is consumer demand, and lacks objective justification. Magill, IMS Health and Microsoft apply that demanding, fact-specific doctrine.
Other routes have different tests. A standard-essential patent holder that made a FRAND licensing commitment must follow the Huawei v ZTE pre-injunction process, while a willing implementer must respond diligently. The Software Directive expressly permits narrowly conditioned decompilation for independently created interoperability. The Digital Markets Act imposes ex ante interoperability and data-access duties on designated gatekeepers without requiring a fresh finding of dominance or abuse.
Statutory compulsory licences are different again. They arise only under legislation or national patent law and on its conditions. The EU now has a last-resort crisis-management regime, alongside the pharmaceutical-export system. None of these rules creates a general entitlement to use another person's IP merely because access would be useful or cheaper.
Competition law targets abuse, not IP ownership
Article 102 TFEU prohibits abuse by one or more undertakings holding a dominant position where trade between Member States may be affected. Dominance must be established in a defined market. The existence and ordinary exercise of an IP right do not themselves prove dominance or abuse; exclusive rights are intended to permit exclusion.
Restrictive licensing agreements may instead engage Article 101. That is different from unilateral refusal and public compulsory licensing.
A refusal to license is abusive only exceptionally
In Magill, Joined Cases C-241/91 P and C-242/91 P, broadcasters used copyright over their weekly programme listings to prevent a comprehensive weekly television guide. The information was indispensable, the refusal prevented a new product for which there was consumer demand, lacked justification and reserved the secondary guide market to the broadcasters.
IMS Health, Case C-418/01, restated the core rule:
[I]n order for the refusal by an undertaking which owns a copyright to give access to a product or service indispensable for carrying on a particular business to be treated as abusive, it is sufficient that three cumulative conditions be satisfied, namely, that that refusal is preventing the emergence of a new product for which there is a potential consumer demand, that it is unjustified and such as to exclude any competition on a secondary market. —
Indispensability is strict: there must be no actual or potential viable substitute. The neighbouring market can be potential or hypothetical, but distinct upstream and downstream stages must be identifiable. The applicant must seek to offer something not already offered by the rightholder, not merely duplicate it.
In Microsoft v Commission, Case T-201/04, the General Court upheld a decision requiring Microsoft to disclose work-group-server interoperability specifications and permit their use on reasonable and non-discriminatory terms. It stressed the exceptional character of the intervention:
It is only in exceptional circumstances that the exercise of the exclusive right by the owner of the intellectual property right may give rise to such an abuse [...]. —
On the evidence, the information was indispensable to viable competition, the refusal risked eliminating all effective competition, and it limited technical development to consumers' prejudice. The required specifications described interface rules; the remedy did not require Microsoft's source code. The case does not mean every dominant technology supplier must open an interface.
The 2025 Alphabet and Others judgment, Case C-233/23, distinguishes a platform developed for third-party use. Refusing interoperability with another app could be abusive even if the platform was not indispensable to that app. Integrity, security or technical impossibility can justify refusal; otherwise a template may be required within a reasonable period, potentially with a proportionate cost contribution. The stricter test remains relevant to infrastructure developed for the dominant undertaking's own needs.
FRAND commitments constrain some SEP injunctions
A patent essential to a technical standard can confer powerful leverage, but essentiality does not automatically establish dominance in every dispute. Huawei v ZTE, Case C-170/13, addressed a dominant SEP proprietor that had given an irrevocable undertaking to license on fair, reasonable and non-discriminatory terms.
Before seeking an injunction or recall, the proprietor must alert the alleged infringer by identifying the patent and infringement. If the implementer expresses willingness to license, the proprietor must give a specific written FRAND offer identifying the royalty and calculation method. The implementer must then respond diligently and in good faith, without delaying tactics; if it rejects the offer, it must promptly make a specific FRAND counter-offer and, after rejection, provide appropriate security and account for past use.
[A]n alleged infringer cannot be criticised [...] for challenging, in parallel to the negotiations [...], the validity of those patents and/or the essential nature of those patents to the standard [...] and/or their actual use. —
Failure by either side can change whether an injunction is abusive. The judgment does not prevent claims for accounts or damages for past use, and it is not a mechanism by which an implementer obtains a royalty-free licence.
The Software Directive creates a statutory interoperability exception
Article 6 of Directive 2009/24/EC is not a competition remedy. It permits reproduction of code and translation of its form without the rightholder's authorisation where indispensable to obtain otherwise unavailable information needed to make an independently created program interoperable with other programs:
The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form [...] are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs. —
Only a licensee or other person entitled to use a copy, or an authorised person acting for them, may perform the acts. They must be confined to necessary parts. The information cannot be used for another goal, disclosed except where necessary for interoperability, or used to develop or market a program substantially similar in expression. Contrary contract terms are void. These conditions apply without proving market dominance.
The DMA imposes ex ante duties on designated gatekeepers
The Digital Markets Act applies only after the Commission designates a gatekeeper and lists relevant core platform services. Its obligations do not depend on proving an Article 102 abuse in each instance.
Article 6(7) provides:
The gatekeeper shall allow providers of services and providers of hardware, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same hardware and software features [...] as are available to services or hardware provided by the gatekeeper. —
Necessary, proportionate and justified integrity measures remain possible. Article 7 separately phases interoperability for designated messaging services. Article 6 also addresses end-user portability, business-user data and specified search data. Each duty has distinct privacy, security and scope conditions.
These are regulatory access obligations, not findings that the gatekeeper's IP is invalid or that every third party may use it for any purpose.
Statutory compulsory licences are a separate public-law route
Regulation (EU) 2025/2645 entered into force on 19 January 2026. It allows the Commission, after advice from the relevant body, to grant a Union compulsory licence where a listed Union crisis or emergency mode has been activated, use of a protected invention is needed to supply crisis-relevant products, and adequate access cannot be achieved within a reasonable time through other means, including voluntary agreements.
The licence is temporary, non-exclusive and Union-wide. It can cover patents, utility models, supplementary protection certificates and published applications; it must define scope, beneficiary, duration and remuneration and cannot outlast the crisis. It neither licenses copyright nor compels disclosure of protected trade secrets.
Regulation (EC) No 816/2006 provides another specific procedure for compulsory licences covering patented pharmaceutical products manufactured for export to eligible countries facing public-health problems. Its current consolidation includes a Commission route where manufacture and export span multiple Member States. National compulsory-licensing systems continue to govern other national grounds and territorial licences.
A competition authority ordering access after proving abuse, a statute authorising crisis use, an SEP holder complying with a FRAND commitment and a gatekeeper obeying the DMA are therefore legally distinct situations. Their triggering facts, authority, territorial scope, remuneration and permitted use cannot be interchanged.
Conclusion
EU law limits IP exclusivity through several narrow gateways, not one broad fairness power. Competition intervention against refusal remains exceptional and evidence-heavy. FRAND procedure disciplines the use of some SEP injunctions. Software and gatekeeper legislation impose defined interoperability rights without an abuse finding. Compulsory licences depend on an express statutory or national legal basis. Correct classification determines both whether access can be required and how far it may go.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.