VoiceAge vs HMD saga continues with constitutional complaint

HMD filed the constitutional complaint on 12 March, roughly six weeks after the Federal Court of Justice dismissed its appeal on 27 January. The complaint targets the Federal Court’s decision not to refer questions on the interpretation of EU law regarding SEP holders’ FRAND licensing obligations to the CJEU — despite an amicus curiae intervention by the European Commission urging such a referral.

According to HMD, the Federal Court of Justice’s refusal to refer these questions to the CJEU denies judicial clarification by the court competent to interpret EU law, thereby violating HMD’s constitutional right to the lawful judge.

The constitutional complaint is not wholly unexpected. In a statement issued shortly after the Federal Court of Justice ruling in late January, HMD had already signalled it would evaluate further legal steps. At the time, JUVE Patent reported that a constitutional complaint was likely the Finnish company’s only remaining option under German law.

Roots of the dispute

The Federal Court of Justice upheld Munich Higher Regional Court’s injunction against HMD in the VoiceAgeEVS dispute, largely maintaining its FRAND case law from the landmark Sisvel v Haier I and II decisions. At the oral hearing on 27 January, presiding judge Sabine Rotloff made clear early on that HMD’s appeal had little chance of success.

The Antitrust Senate also dismissed the possibility of a CJEU referral. The Federal Cartel Office – unlike the European Commission – had backed the Federal Court of Justice’s recent FRAND case law in Sisvel v Haier I and II.

HMD had strongly objected to the January ruling. In its statement, the company said it disagreed with the Federal Court of Justice’s assessment that it showed “no serious interest” in obtaining a FRAND licence, calling this characterisation inconsistent with its “documented continuing good-faith negotiation efforts”.

Through the constitutional complaint, HMD is now seeking clarification of EU law questions that it says have broad implications for fair licensing practices, legal certainty and the functioning of Europe’s technology markets.

Precedent at the Constitutional Court

The Federal Constitutional Court has dealt with several patent-related complaints in recent years, including challenges against EPO Board of Appeal jurisdiction practices, the UPC Agreement and the Federal Court of Justice’s FRAND decisions.

In a closely watched parallel case, Chinese mobile phone manufacturer Haier filed a constitutional complaint in 2020 over the Federal Court of Justice’s decisions in Sisvel v Haier I and II (case ID: 1 BvR 1843/20). Haier sought a review of whether the Federal Court’s ruling aligned with European law. However, as JUVE Patent reported, the Constitutional Court rejected Haier’s complaints.

The outcome of HMD’s complaint could have significant implications for how German courts handle FRAND disputes going forward, particularly regarding the question of when a referral to the CJEU is required.