The 'Huawei v. ZTE' Judgement and Follow-On Application of Article 102 TFEU in the Light of this Judgement by German Courts

Abstract

This paper discusses a judgement of the Court of Justice in re Huawei v. ZTE rendered on 16 July 2015 providing binding interpretation of Article 102 TFEU. This judgement concerns an abuse of dominant position by bringing an action for injunctive relief and/or the recall of goods from distribution by an owner of a standard essential patent who made prior FRAND commitment. Many controversies in the ICT industry as well as in Academia appeared on how to approach the interpretation of this groundbreaking judgement. The author suggests interpretation capturing a broad spectre of anti-competitive effects and thus make the best use of this judgement in the interest of prevention of stakeholders' opportunistic behaviour. A key part of this paper is formed by an analysis of German follow-on case-law applying Article 102 TFEU in the light of the Huawei v. ZTE judgement. The author concludes, inter alia, that German courts´ assessment of an abuse of dominant position is strongly focused on application of the so-called Huawei steps. For the future, the author advices to base the decisions more on persuasive theory of harm and support them by evidence of (potential) anti-competitive effects. As for the practical implications of the German follow-on case-law, one may observe a shift from the previous case-law based on the Orange Book Standard decision in some aspects. Since Germany is an important patent litigation destination, stakeholders from the ICT industry will attentively follow the development of FRAND-related case-law originating from German courts and possibly adapt their behaviour accordingly.