Mathew Heim, Feb 11, 2011
Guidelines issued by the European Commission can provide an important complement to the modernization of Europe’s competition regime. Instituted by Regulation 1/2003, modernization did away with the system of prior notification to the European Commission competition authority, making undertakings themselves responsible for assessing the legality of their business practices. Guidelines are thus increasingly important, as business practices become more complex and as the law requires an effects-based, rather than per se, approach. Guidelines also provide guidance to national competition regimes and courts, which may apply European competition law under the modernization regime.
The function of guidelines is therefore not to create new law, but to provide undertakings with a level of clarity and legal certainty as to what the existing law prescribes. It is also that true guidelines must remain at a level of generality, given that they cannot cover all permutations. In this light and due to their legal nature, guidelines are not capable of having direct legal effects on undertakings (save where they create legitimate expectations). This background is important is assessing the recently adopted Guidelines on Horizontal Cooperation Agreements and notably Chapter 7 of those Guidelines which addresses Standardization Agreements.
The following paper makes some observations on this chapter of the new Guidelines.