ASCOLA Competition Law series
Edited by Josef Drexl and Fabiana Di Porto
Chapter 13: Competition law as the limit to standard-setting
This chapter provides an analysis of the application of EU competition law to standard-setting by looking at case law under both Articles 101 and 102 TFEU. The aim of the chapter is 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 set 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.
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