The new horizontal guidelines: standardisation agreements

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This article discusses the European Commission’s draft new Horizontal Cooperation Guidelines that were published for consultation in March 2022. In particular, the article focuses on the areas of the draft Guidelines dealing with standardisation agreements, which have been thoroughly reworked by the Commission to address a number of identified shortcomings in the current Guidelines. The article includes discussion of intellectual property rights (IPRs), related competition concerns and additional guidance on FRAND commitments and the approach to evaluating the FRAND character of licensee fees. Also covered in the article is the importance of good faith disclosure by participants of essential IPR for the implementation of a standard, and open vs restricted participation in standard-setting.