Standardization for the Digital Economy: The Issue of Interoperability and Access Under Competition Law

摘要

This article discusses several aspects of the Digital Economy. First, the data industry and the business conduct of the approaching Internet of Things are presented. Second, the current standardization efforts promoted by the European Commission are discussed, for example, what the challenges are, how much should be standardized, and how prestandard consortia should be judged. Third, current and future competition law issues for the Digital Economy, in reference to standardization, are identified. The article states joint technology consortia for upper-layer standards, i.e. in the ecosystems, should benefit from heightened scrunity under Article 101 of the Treaty on the Functioning of the European Union (TFEU), while system leaders' business conduct in the Digital Economy may be judged in reference to Article 102 TFEU. The article concludes that the main issue under general competition law in the Data Economy, at its current stage of development, is to create a level playing field by trying to facilitate the implementation of the Internet of Things. Thus, competition authorities should be cautious about the current ecosystem consortia driven standard-setting movement in the Digital Economy, while also facilitating the application of Article 102 TFEU when system leaders possibly abuse their dominance by not giving access to their respective ecosystems.