FSA Comments to the European Commission’s Targeted Consultation on Standardization Agreements in the Horizontal Guidelines

Brussels, 5 October 2021 – As an industry organization representing over 50 companies across, the Fair Standards Alliance welcomed this opportunity to offer comments to the European Commission’s Targeted Consultation on Standardization Agreements in the Horizontal Guidelines.

The Horizontal Guidelines are fundamental to preserving fair, reasonable and non-discriminatory (FRAND) licensing conditions of SEPs and preventing abuses related to SEP licensing. In this consultation the FSA provides feedback to the Commission on the various disclosures requirements currently used in standards for a around the globe. FSA members partake in the development of hundreds of standards in various standard setting contexts and drawing upon this wealth of experience was useful in responding to this questionnaire.

In addition, the FSA calls on the European Commission to enforce the FRAND commitment and further clarify in the revised Guidelines on Horizontal Cooperation Agreements that licenses should be made available to anyone willing to take a license on FRAND terms to use the standard, irrespective of its position in the value chain. Clear guidance from the Commission on this point will have a positive effect in the market by creating greater legal certainty for companies seeking to invest in the development and implementation of standardized technologies.

As explained in FSA’s response to the prior consultation (submitted on 12 February 2020), FSA urges the Commission to update the section of standardization agreements normally not restrictive of competition to state that standardization agreements that are unclear on this point should not be considered to fall within the ‘safe harbor’. In fact, FRAND-based standardization agreements that do not provide for licenses to be available to any licensee (irrespective of its position in the value chain) may raise competition law concerns and not satisfy the efficiencies test under Art 101(3) TFEU.