"Standard setting" im EG-Kartellrecht

Wettbewerbskommissarin Neelie Kroes hat in einer Rede zu der Frage Stellung genommen, wann die Bildung und Durchsetzung von Industriestandards (“standard setting”) aus Sicht der Europäischen Kommission gegen EG-Kartellrecht verstößt.

Sie hat in diesem Zusammenhang auch angekündigt, dass die derzeit in Überarbeitung befindlichen EG-Richtlinien zur kartellrechtlichen Zulässigkeit horizontaler Unternehmenskooperation hierzu einen (neuen) Abschnitt enthalten werden.

Frau Kroes zur grundsätzlichen Bewertung von Industriestandards:

In essence, standards are good because they create the level playing field on which all can compete. More than that, good standard-setting helps consumers, boosts competitiveness and can spur market growth. Remember, for example, the wide-spread benefits of some of the most common standards in everyday use I am thinking of the GSM standard for mobile phone, Internet protocols, the magnetic stripe on various ID and banking cards, MPEG for videos and podcasts.

Zur Standardisierung im Wege von Patent-Pools:

… I see an important pro-competitive rationale to having standards bodies require the disclosure of patents and, where relevant, patent applications, in the early stages of standard-setting. Ex ante disclosure helps those involved make a properly informed decision, and competition law should not stand in the way.

This will almost always entail ex ante disclosure of the existence of essential patents. But it could also entail unilateral ex ante disclosure of maximum royalty rates and the most restrictive licensing terms that would apply should a company’s technology be made the standard …

At the same time, I recognise that those who innovate deserve to be rewarded accordingly, and that incentives to innovate are therefore important. I do not think ex ante price disclosure rules would reduce incentives to innovate. If you have a unique, pioneering, and innovative technology for which no alternative exists, then the market will value it accordingly.

Another issue we will seek to address in appropriate cases is that of ‘hold-up’ situations where IPR holders do not live up to ex ante commitments to fair, reasonable and non discriminatory (FRAND) licensing terms they have clearly agreed to for a given standard and in accordance with the rules of the standard setting organisation.

In my view, there are a number of ways to assess whether there has been an excessive pricing abuse under Article 82 EC and the methodologies used will depend on the factual matrix. One method is to compare the (ex-ante) market value of the relevant IPR with the ex post royalty rate, if the evidence clearly permits such a comparison. If the ex post royalty is significantly and unjustifiably higher than the ex ante price, then we may have an excessive pricing case. In practice, such assessments may be much more complex than this brief description of the issues implies, and any antitrust enforcer has to be careful about overturning commercial agreements without a clear and coherent evidence base.

But if standards are set in an open and transparent manner, industry can concentrate on delivering products which comply with these standards and which bring benefits to consumers, rather than devoting their energies to litigating in front of courts and competition authorities. Whilst it is for industry to choose what type of scheme is best suited to its needs, the Commission is ready to give inputs to ensure that standard setting is efficient and in line with the law.

Und schließlich zum Kartellverfahren IACS.

Dort ging es um den Internationalen Verband der Klassifikationsgesellschaften (“International Association of Classification Societies”). Klassifikationsgesellschaften entwickeln, überprüfen und bescheinigen die Einhaltung der in ihren Klassifikationsregeln und -verfahren niedergelegten technischen Anforderungen in Bezug auf Typ, Bau, Ausrüstung, Wartung und Überwachung von Schiffen. Die EG-Kommission hat am 14. Oktober 2009 eine Reihe von Verpflichtungszusagen der IACS für verbindlich erklärt (Quelle: Kommission).

Frau Kroes:

… IACS members set down their technical requirements in a series of documents for use by members. But due to the size of its ten members, IACS is able to set de facto industry standards for classification. In other words – while these documents may be intended for members, they become the minimum requirements which all Classification Societies need to know – and be capable of applying. Effective competition is likely to be absent when this information is not available.

We were concerned that competition was being locked-out because of an IACS policy to prevent non-IACS Classification Societies from participation in the creation of these standards. Non-members were unable to join IACS’ technical working groups, or even access the technical background documents relating to these standards.

The question then becomes – how can one apply these standards if it is difficult or impossible to access them and to understand their origins.

To address these concerns, IACS proposed a series of commitments that bind it to deliver access to the standards on FRAND terms. This includes:

  1. Full access to IACS standards and background documents, and
  2. The possibility for non-member to participate in IACS working groups.
  3. IACS has also volunteered to offer its technical documents royalty-free and without licence.

There is an important element of IACS’ work we did not intervene in, however. We have acknowledged the special technical competence of IACS and their right to set high minimum standards … So in other words – as long as a classification society can meet the objective technical competence conditions for admission to IACS, it will now have the possibility to co-decide future de facto industry standards. This is good for the industry in my view, and shows that an open process for standard-setting is widely applicable as best practice.