Huawei v ZTE (CJEU, C-170/13, 2015)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

On a reference from the Düsseldorf Regional Court, the Court of Justice of the European Union set out the conditions under which the proprietor of a standard essential patent that has given a FRAND undertaking may seek an injunction or the recall of products without abusing its dominant position under Article 102 TFEU. It laid down a sequence of reciprocal obligations: notice to the infringer, a specific written offer by the proprietor, a diligent response by the implementer, a counter-offer and the provision of security (paras 60 to 71). Claims for the rendering of accounts and damages are not affected (para 76). The judgment is the reference framework for the FRAND defence before European courts.

Facts and procedure

Huawei Technologies owns European patent EP 2 090 050 B1, granted for Germany and notified to ETSI on 4 March 2009 as essential to the LTE standard, with a FRAND undertaking (paras 21 and 22). From November 2010 to the end of March 2011 Huawei and ZTE discussed a licence without concluding one: Huawei had indicated a royalty, while ZTE sought a cross-licence (paras 24 and 25). As ZTE marketed LTE products without paying royalties, Huawei sued on 28 April 2011 for an injunction, the rendering of accounts, recall and damages (paras 26 and 27). The referring court was torn between the Federal Court of Justice’s Orange-Book-Standard judgment and the Commission’s approach in the Samsung case (paras 30 to 35).

The applicable law

Abuse of a dominant position is an objective concept (para 45). The exercise of an intellectual property right, including bringing an infringement action, is not in itself an abuse, save in exceptional circumstances (paras 46 and 47). The Court balanced free competition against the protection of intellectual property and the right to effective judicial protection under Articles 17(2) and 47 of the Charter (paras 42 and 57 to 59). Dominance was not disputed (para 43).

Question

In what circumstances does an action for an injunction or recall brought by the proprietor of a SEP that has given a FRAND undertaking amount to an abuse under Article 102 TFEU, and does the same apply to claims for the rendering of accounts and damages (para 44)?

Decision

SEP status, obtained in return for the FRAND undertaking, and the legitimate expectations that undertaking creates in third parties distinguish the case from the classic case law: a refusal to grant a FRAND licence may in principle be an abuse and be raised in defence (paras 48 to 54). The proprietor may not sue without first giving notice identifying the patent and the way it is infringed (paras 60 and 61). Once the implementer has expressed its willingness to conclude a licence, the proprietor must make a specific written offer stating the royalty and how it is calculated (para 63). The implementer must respond diligently, in line with recognised commercial practice and in good faith, without delaying tactics (para 65); if it does not accept, it must promptly make a specific written FRAND counter-offer (para 66) and, if already using the patent, provide appropriate security once that counter-offer is rejected (para 67). The parties may by agreement ask an independent third party to set the royalty (para 68), and the implementer may challenge validity, essentiality or use (para 69). Applying these criteria is for the national court (para 70). Claims for accounts and damages, which have no direct impact on competitors’ products appearing or remaining on the market, are not abusive (paras 73 to 76).

Key points for practice

• The proprietor must give notice and, once willingness has been expressed, send a written offer specifying the royalty and its calculation (paras 61 and 63).
• An implementer rejecting the offer must make a FRAND counter-offer and, if using the patent, provide security covering in particular past use (paras 66 and 67).
• An implementer cannot be criticised for challenging validity or essentiality during negotiations (para 69).
• Practical point: the FRAND defence turns on the chronology of the exchanges, which should be documented step by step, each party having to show its diligence objectively (paras 65 to 67).

Relevance before the UPC

As an interpretation of Article 102 TFEU, the judgment binds the UPC, which must apply Union law, whenever a FRAND defence is raised against an injunction claim before its divisions.

Provisions applied

Treaty on the Functioning of the European Union

Art. 102

Charter of Fundamental Rights of the European Union

Arts 17(2) and 47

Directive 2004/48/EC

recitals 10, 12 and 32, Arts 9 and 10

European Patent Convention

Art. 1; Art. 2; Art. 64

ETSI IPR Policy

Annex 6 to the Rules of Procedure, clauses 3.1, 3.2, 4.1, 6.1, 6.3, 8.1, 14 and 15.6

National law

§ 139 PatG; §§ 19 and 20 GWB; § 242 BGB

Case law cited

Hoffmann-La Roche v Commission, 85/76; AKZO v Commission, C-62/86; Tomra Systems and Others v Commission, C-549/10 P; Volvo, 238/87; RTE and ITP v Commission, C-241/91 P and C-242/91 P; IMS Health, C-418/01; Post Danmark, C-209/10; Otis and Others, C-199/11; BGH, Orange-Book-Standard, KZR 39/06, 6 May 2009

Related decisions

• Orange-Book-Standard, Federal Court of Justice (BGH), 6 May 2009, the German approach set out by the referring court.
• Samsung, European Commission, 29 April 2014, the proceedings whose Statement of Objections was referred to by the referring court.

Prepared by Dhenne Avocats from the text of the decision (WIPO Lex, English version of the judgment), consulted on 11 October 2026. Only the official text is authoritative.