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Pierre Larouche and Nicolo Zingales on Injunctive Relief in FRAND Disputes in the EU

Availability of injunctive relief for holders of FRAND-encumbered SEPs was long addressed under the various national IP laws.

After the European Commission’s interventions based on competition law in Motorola and Samsung, also the CJEU followed suit and in Huawei v ZTE set out an elaborate choreography that SEP holder and implementer must respect. It represents a satisfactory compromise in practice, but its theoretical foundation in competition law is not solid. Subsequent case-law has unmoored Huawei from competition law and is turning it into a stand-alone lex specialis for injunctions in FRAND cases.

TILECmember Pierre Larouche and TILEC extramural fellow Nicolo Zingales argue in their Discussion Paper no. 2017-004 that in the longer run legislative intervention might be preferable to de facto harmonization via competition law.