Compulsory licensing and interim measures in Merck: a case for Italy or for antitrust law?

Legal context: This paper examines an important decision of the Italian CompetitionAuthority in a case concerning the compulsory licence of IPrights. The oddity of the case lies in the fact that the dominantposition of the defendant seemed to be due, rather than to thefact that the latter held certain IP rights, to a peculiar defacto situation. Key points: As a result, the competition authority did not apply the testthat is traditionally used in cases of abuses involving IP rights,but the plain ‘essential facilities’ doctrine. Practical significance: The case shows that the borderline between these two types ofabuses is a difficult one to draw, and more generally that thecomplex relationship between competition law and IP is in needof clarification. The paper also deals with the issue, raisedby the same case, of whether, in the absence of national provisionto this effect, national competition authorities have any powerto issue interim measures.