Competition and Monopolies in UK Law

Mr Carr submits that in many other EU countries those circumstances are regarded as unfair competition. He is probably right about some EU countries, though my general understanding (I could not give chapter and verse) is that in some countries there has been a “rowing back” on what amounts to “unfair competition”. But even if such circumstances amount to unfair competition in some countries, it is surely clear that the concept of “unfair advantage” is an autonomous EU concept.

The second version of non-discrimination referred to is one which "some economists" have proposed. Since the ETSI FRAND undertaking already obliges licensors to offer licences to everyone, it does not add anything to that. It is also weaker than the benchmark FRAND rate approach, which at least applies to all licensees with licences of the same type.

The third interpretation proposed by Prof Carlton is based on similarly situated firms paying the same rate. It is based on the same concepts as competition law. In effect this is the one Huawei contend for although one cannot take that too far. The paper is not purporting to set out a fully worked out proposal on the correct approach in law to interpret the FRAND undertaking. It is not focussed on the distinction between the arguments of Huawei and Unwired Planet.

In my judgment the ETSI FRAND undertaking should not be interpreted so as to introduce the kind of hard-edged non-discrimination obligation supported by Huawei without also including consideration of the distortion of competition. Competition law does not seek to prohibit different prices being charged to different customers.

Having got this far it seems to me that it is not necessary to read this hard-edged non-discrimination obligation into the ETSI FRAND undertaking at all provided one takes a benchmark rate approach to assessing a royalty under the ETSI FRAND undertaking. That approach is itself non-discriminatory and gives effect to the "ND" limb of FRAND.

A second difficulty is that the members of the represented class do not have the same interest in recovering damages for breach of competition law if a defence is available in answer to the claims of some of them, but not to the claims of others: for example, if BA could successfully run a particular defence against those who had passed on the inflated price, but not against others.

Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 of the regulations.