Applying FRAND in the Digital Economy

Today, we live in a digital, data-driven economy where access to essential technologies is critical for innovation and growth. Against this backdrop, we explored how “fair, reasonable and non-discriminatory” (FRAND) access obligations are applied across EU legislation, case law and regulatory practice, with a particular focus on the digital economy. Our key interest lies how FRAND shapes access to essential technologies, data and digital infrastructures, and why these rules matter more than ever in today’s data-driven economy.

Background

FRAND obligations have long governed the licensing of standard-essential patents, but their relevance has expanded far beyond the ICT sector. Today, around thirty EU legislative acts include FRAND or FRAND-like provisions, reflecting the EU’s growing reliance on fair access rules to support digital transformation, competition and innovation.

Our study provides the first comprehensive mapping of this broader FRAND landscape. It reviews EU legislation and administrative practice, national case law from major jurisdictions such as Germany, the Netherlands, France and Italy, and international developments in the United States, China, South Korea and the UK.

Our research highlights how FRAND operates as a flexible legal and policy tool. It ensures fair licensing in technology markets, enables access to data and digital infrastructure, supports interoperability through the Digital Markets Act, and shapes conditions for RDI-related State aid. By examining both legal foundations and real-world applications, the study shows how FRAND has become a cornerstone of the EU’s approach to governing digital ecosystems.

Key findings

FRAND is gaining strategic relevance across EU digital regulation. New legislation, such as the Digital Markets Act and the Data Act, rely on FRAND terms to guarantee fair access to platforms, datasets and interoperability features, preventing discriminatory behaviour and strengthening competitive digital markets.

Case law is still dominated by SEP disputes, and Germany leads the way. The Huawei v. ZTE judgment remains the backbone of FRAND case law, defining good-faith negotiation duties on both sides. Germany continues to be a global hub for FRAND litigation, with an extensive body of detailed case law.

FRAND commitments stretch across competition law, merger control and State aid. The European Commission frequently assesses FRAND conditions in merger reviews and antitrust cases, while State aid frameworks, including IPCEI projects, increasingly rely on FRAND requirements to ensure wide dissemination of RDI results.

Approaches differ across jurisdictions, but negotiation principles converge. Comparisons with the US, China, South Korea and the UK reveal divergent practices on injunctions but common expectations around transparency, proportionality and willingness to negotiate.

Academic debate is expanding into data and platform regulation. While traditionally centred on SEPs, new research explores what FRAND means for data access, app stores, search engines and other digital services, signalling its evolution into a core governance tool for the digital economy.

Want to know more? Read our full report here.