Competition Law Analysis of Standard-Essential Patents after Huawei v. ZTE: A 
New European Approach?

Botta, Marco; Robertson, Viktoria H.S.E.

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Competition Law Analysis of Standard-Essential Patents after Huawei v. ZTE: A New European Approach?

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Citation

Botta, M., & Robertson, V. H. (2016). Competition Law Analysis of Standard-Essential Patents after Huawei v. ZTE: A New European Approach? Österreichische Zeitschrift für Kartellrecht, (3), 96-104.

Cite as: https://hdl.handle.net/11858/00-001M-0000-002D-4B7A-A

Abstract

The Huawei v ZTE preliminary ruling gave the Court of Justice of the European Union a first opportunity to rule on the competition law analysis of the enforcement of standard-essential patents (SEPs). The Court assessed under which circumstances the enforcement of a SEP could constitute the abuse of a dominant position contrary to Article 102 TFEU. The ruling represents an important milestone in European competition law, setting out a detailed set of obligations for both SEP owners and potential licensees when negotiating license terms for FRAND-encumbered SEPs. The Court seized this opportunity to harmonize national case law and Commission enforcement practice which had been developing in quite different directions, but left several questions unresolved. The Court also carried out a balancing exercise between the intellectual property rights at stake and free competition, showing how fundamental rights considerations can play into competition law analysis.