The EU Commission’s “contempt” of national courts?

On 11 September 2014, the European Court of Justice heard a case officially categorised as a competition law matter: Case C-170/13 Huawei Technologies. However, the issue before the Court is much more fundamental; it raises deep constitutional questions concerning the inter-relationship between the national courts and the European Commission – and in particular the asserted ability of the Commission to restrict certain classes of applicants from having access to national courts (and/or penalise their exercise of that right).

By way of background: The Landgericht Düsseldorf (in German only: here) essentially raises the question of whether it is an abuse of a dominant position for a standard-essential patent (“SEP”) holder, who has made a commitment to license to any third party on fair, reasonable and non-discriminatory (“FRAND”) terms, to seek an injunction before a national court against an alleged infringer who has declared (no more than) that he is willing to negotiate concerning such a license. Put more simply, the national court is asking what is the correct test to be applied by the national court in considering a request for an injunction in these circumstances.

Even if that were the only issue, the case raises an important question on the interplay between patent law and competition law, especially as Germany appears to be the only national patent jurisdiction that sees the application for an injunction by a SEP holder through the competition, rather than a patent law, lens.

Yet some very recent decisions of the Commission under Regulation 1/2003 have given this case a potentially deeper, constitutional, significance apparently not debated at the hearing before the CJEU ...

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