European standardisation in the ICT sector

Abstract

The removal of all barriers to trade between Member States has always been crucial to the EU's Internal Market programme. However, although the removal of import/export tariffs did officially launch the free trade area, the EU has come across various other barriers to unhindered trade between Member States. One of these barriers is the problem of diverging standards between Member States The Commission has had to come up with an approach whereby the powers of the EU institutions have had to be sacrificed for the 'greater good' of an effective free trade area. The transfer of power and competence to the European standards organisations in the case of standardisation has led to claims of unlawful delegation under EU law. However, champions of the New Approach to technical harmonisation, mainly industrial players maintain that it is crucial for ensuring competitiveness with the EU's trading adversaries. The convergence of technologies to make up the ICT sector has led to a further re-think of the European approach to technical harmonisation with decision-making being left mostly in the hands of the private industry player, and the European standards bodies having to modify their roles. Whereas previously all work related to the drawing up of standards was done by the standard bodies, the latter have now been relegated the role of providing some sort of management and coherence to industry-led standardisation. The emergence of industry 'de facto' standards has also created competition and intellectual property law concerns such as, for example, in cases where there is refusal to supply by the owner of an IPR which has achieved the status of a standard. Such actions by the owner of a dominant standard may serve as a barrier to entry, with EU law principles tending to favour more the proper functioning of the internal market at the expense of an IPR over a standard.