Horizontal Agreement

If participation in the standardisation process is open to the extent that it allows all competitors (and/or interest groups) in the market concerned by the standard to participate in the selection and development of the standard, this reduces the risk of a likely competitive effect by not excluding certain undertakings from the possibility of influencing the selection and development of the standard (120). The greater the likely effects of the standard on the market and the wider its potential scope of application, the more important it is to allow equal access to the standardisation process. However, if it appears from the facts available that there is competition between several of these standards and standards bodies (and that it is not necessary for the whole sector to apply the same standards), this must not have a restrictive effect on competition. Even if it would not have been possible to adopt the standard without limiting the number of participants, the agreement would not be such as to restrict competition under Article 101(1)(121). In some situations, the potential negative effects of limited participation can be eliminated or, at the very least, reduced, by ensuring that stakeholders are informed and consulted on ongoing work (122). The more transparent the procedure for adopting the standard, the more likely it is that the adopted standard will take into account the interests of all parties involved. Standardisation agreements may affect four potential markets defined in accordance with the Market Definition Communication. First, standard-setting may affect the market for products or services or markets that refer to the standard or standards. Second, if standardisation includes the choice of technology and intellectual property rights are marketed separately from the products concerned, they may have an impact on the market for the technology in question (101).

Thirdly, the standard-setting market may be jeopardised if there are different standardisation bodies or agreements. Fourth, the establishment of standards may, where appropriate, undermine a separate market for testing and certification. If a horizontal cooperation agreement does not reduce competition, it should be examined whether it has an impact on competition. Both actual and potential effects should be taken into account. In other words, the agreement must at least have anti-competitive effects. Analysis: This standardisation agreement is likely to have restrictive effects on competition within the meaning of Article 101(1) and is unlikely to meet the criteria set out in Article 101(3). . .

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