Source: EURLEX
Language: en
Format: md

[**Avis juridique important**](../../../editorial/legal_notice.htm)

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# 92003E0553

**WRITTEN QUESTION E-0553/03 by Joan Vallvé (ELDR) to the Commission. Breach of EC's competition rules.** 
  
*Official Journal 051 E , 26/02/2004 P. 0032 - 0032*

  

WRITTEN QUESTION E-0553/03

by Joan Vallvé (ELDR) to the Commission

(27 February 2003)

Subject: Breach of EC's competition rules

I have been informed that in the ex-officio case 37926 (Sun/ETSI) with regards to the ETSI GSM 03.19 standard the European Commission was concerned that there could have been a breach of the EC's competition rules due to: (a) the late disclosure and identification by Sun of its claimed essential intellectual property rights (IPR) in this standard; and (b) the fact that from a technical perspective Sun's claimed essential IPR were not in fact essential.

In that case there might have been a restriction of competition in the sense of Article 81 of the EC Treaty because of:

- the standardisation agreement's effect of excluding actual or potential competitors from the market as a result of non-transparent procedures; and

- because of the non-indispensability of the standardisation agreement in the way that it had been formulated.

I warmly welcome the conclusions that have been adopted by the European Commission and would like to know what the Commission regards as necessary to ensure that similar problems such as those that have occurred with GSM 03.19 do not occur in the future.

Answer given by Mr Monti on behalf of the Commission

(4 April 2003)

The Commission can confirm that in the case to which the Honourable Member refers, it has highlighted concerns to ETSI about the formulation of the ETSI GSM 03.19 standard.

More specifically, the Commission was concerned that an artificial barrier to entry in the market for GSM smart cards could have been erected as a result of:

(i) the late disclosure and identification of claimed essential intellectual property rights (IPR) in the standard; and

(ii) the apparent non-essentiality of the claimed essential IPR. The Commission is monitoring the follow-up of the situation in this ongoing case.

In general, the Commission believes that it should not be its role to interfere in the nature of the standard-setting process. In hi-tech markets especially, standards, if properly developed, play a positive role in promoting the efficient promulgation of new technologies in a manner that is most beneficial to the consumer and the economy in general. However, the Commission also believes that there may be exceptional cases where the disclosure and identification of claimed essential IPR in a standard after that standard has been agreed could constitute an artificial barrier to entry, because potentially competing technologies may be unfairly precluded from getting to the market. The Commission therefore believes that standard-setting bodies should devise their internal rules in such a way that these types of situations cannot occur. In this respect, the Commission understands that ETSI is undertaking a review of the implementation of its own IPR rules, and stresses the need for this review to deliver effective results.

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