Competition Law as the Limit to Standard-Setting
Forthcoming, Josef Drexl and Fabiana Di Porto (ed) ‘Competition Law as Regulation’, Edward Elgar, 2015
37 Pages Posted: 19 Jan 2015 Last revised: 12 Mar 2015
Date Written: August 16, 2014
The aim of this paper is to provide an analysis of the application of EU competition law to standard-setting, by looking at case law under both Articles 101 and 102 TFEU. I will try to show that there is, and should be, a difference in competition law treatment of standards and standard-setting conduct depending on whether the market exposed to the standard is plagued with network effects or not. For markets with network effects, collaboration to create standards is benign, even pro-competitive, while access to such standards, if covered by intellectual property rights, may, in exceptional circumstances, be granted under competition law. On the other hand, agreements to decide standards for markets which do not display network effects should benefit from a heightened antitrust scrutiny, because these standard agreements may cause exclusionary anticompetitive effects.
Keywords: Standards, standard-setting, standardization, competition law, antitrust, abuse of dominance, monopolization, collusion
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