THE CJEU JUDGMENT IN THE HUAWEI/ZTE CASE: GETTING AROUND THE PROBLEM OF FRAND COMMITMENTS AND COMPETITION LAW

With the Huawei preliminary ruling, the Court of Justice intervened for the first time on the conflict between owners of standard essential patents and licence seekers, when FRAND commitments are provided. Although the question relates to the application of EU antitrust law, the Court did not assess the prerequisites for that application. In addition, it gave no answer to the key question of the identification of FRAND conditions. Yet, the Court adhered to the methodological approach established in the German case law, limiting itself to dictate behavioral guidelines that the parties should follow, in order not to be held responsible for the failure of negotiations and the onset of the dispute.