Relaxing whilst doing Competition Law is not an Oxymoron

Archive for March 12th, 2010


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The upcoming guidelines on horizontal cooperation agreements will fill long lasting gaps. They will include some wording on standardization and information exchange agreements. I paste hereafter the words of the new DG COMP Director General in his first speech (three days ago):

The review of the horizontal guidelines is a good opportunity to clarify what is expected from standard setting organisations as regards disclosure obligations on both pending and granted patents if their standardisation agreements are to comply with the provisions of Article 101. It is also a good opportunity to include some guidance on the meaning of what are fair, reasonable and non-discriminatory (“FRAND”) terms for companies licensing technology. One possibility would be to include a mention of the benchmarks that could be used to assess whether the licensing terms are actually fair and reasonable.

On information exchange, the new guidelines are a good opportunity to provide legal and economic guidance to companies. Our intention is for the guidelines to specify what is considered to be a clear-cut restriction of competition or for example what are the market characteristics that may lead to an exchange of information having a collusive outcome. The guidelines should also give guidance on economic efficiencies that can be created by an exchange of information such as solving problems of asymmetric information or seeking a more efficient way of meeting of demand. It is also the intention that the guidelines will contain many examples as illustration, which will help companies in their assessment. Here again, more legal certainty will be conducive to a better competitive environment.

Let’s just hope that on information exchange agreements, the Commission officials will take on board the Airtours conditions, and not merely stick to the abstract, old-fashioned UK Agricultural Tractors standard.

Written by Nicolas Petit

12 March 2010 at 7:34 pm