Aktuelle Statements von Almunia und Italianer zum weiteren Gang der Arbeit der Europäischen Kommission an der Vertikal-GVO und den Horizontal-Leitlinien:
1. Almunia, “The Road Ahead”, Vortrag 9. März 2010:
And we are now starting an important process on “horizontal agreements”, with what I hope will be significant clarifications notably on information exchange agreements and standardisation agreements. The latter I see as a key driver to facilitating innovation.
2. Italianer, “Challenges for European Competition Policy”, Vortrag 9. März 2010
a. Vertikal-GVO
Buyer power needs our attention because it is now generally recognised that powerful buyers can use their buyer power to impose anticompetitive clauses on suppliers. As a consequence, these buyers would protect or extend their market power to the detriment of consumers. We therefore propose that for a vertical agreement to benefit from the block exemption, both the supplier’s market share and the buyer’s market share should not exceed 30%.
A second aspect that is directly linked to the objective of an innovative, knowledge-based economy concerns on-lines sales. In the context of increasing internet sales and the disappearance of traditional national boundaries for sales, the question has come up whether and to which extent suppliers should be able to restrict sales by their distributors through the internet.
The debate has mainly concentrated on (i) the distinction between active and passive online sales, and (ii) whether manufacturers should have the possibility to exclude online-only distributors from their distribution systems by, for instance, requiring that their distributors have a physical (“brick and mortar”) presence in the market.
Obviously there are various interests at stake here. Our aim with regard to both of these issues is to allow the internet to continue to contribute to cross-border trade in the internal market while at the same time preserving existing distribution models whose efficiency enhancing nature has been recognised.
b. Richtlinien über die horizontale Zusammenarbeit (NB nicht der beiden horizontalen GVOs)
As a result of a number of cases dealt with by DG Competition, it has become clear that standardisation must take place in an open, transparent and non-discriminatory manner, as this is the basis for fostering innovation. At the same time we have been seeking to deter anti-competitive conduct in connection with standard setting procedures. In particular, we are using the competition rules to avoid anti-competitive behaviour stemming from obscure or insufficiently transparent standardisation processes. 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.
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.
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