The Court of Justice oft he European Union decides about the compliance of a licence agreement with European Antitrust Law (Article 101 TFEU)

In the case C-567/14 the Court of Justice of the European Union had to decide the question of whether a licence agreement which provides for payment of a licence fee for a certain technology (enhancer derived from human cytomegalo-virus), even in the case that the underlying patents have been found to be invalid or not being used, violates European Antitrust Law (Article 101 TFEU). Genentech, the licensee, as well as the Spanish government, are of that opinion. The licensor, Höchst/Sanofi-Aventis, the French and the Dutch governments, as well as the Commission of the European Union, did not share this opinion. The Court of Justice of the European Union has decided that Article 101 TFEU is to be interpreted to not forbid that a licensee is obliged under a licence agreement in case of nullity or non-use of the licensed patent to pay a licence fee for the patented technology during the complete duration of the contract, provided that the licensee is allowed to terminate the contract within an appropriate term. Due to the option to terminate the contract, it can be excluded that the licence fee is hampering the competition by limiting the freedom to operate of the licensee or leading to a market foreclosure.