Openness: radical new agenda by Neelie Kroes

Neelie Kroes has set out a really quite radical agenda to ensure interoperability in European ICT procurement and regulation, drawing on her experiences in regulating Microsoft and the procedural frustrations she felt in that case. in Speech 10/300 Address at Open Forum Europe 2010 Summit: 'Openness at the heart of the EU Digital Agenda' Brussels, 10th June 2010 she sets out a five-part agenda:

1. New stand-setting framework at end-2010: “In Europe only ETSI allows these actors to directly participate in the making of standards. One negative result is that the standards underpinning the emerging universal communication platform: the internet and the world wide web - including standards for content formats - are made elsewhere. This puts these standards, many of which are truly open - that is to say they do not come with any constraints for implementers - at a disadvantage vis-à-vis European standards when in legislation or public procurement...[Solving] This could be done via a fast-track approval of their standards through a process hosted by a traditional European standards body such as ETSI, or through the assessment of these bodies' compliance with certain criteria regarding notably openness, consensus, balance and transparency.”

2. “let's face it, establishing FRAND (Fair, Reasonable and Non-Discriminatory) prices is a hard task over which reasonable people often disagree. Transparency is therefore in everyone's interest - the alternatives are not... The Commission has already taken an important step by drafting new guidelines on the application of the Treaty's antitrust rules to horizontal agreements... The draft, which is currently available for public comment, relies on the well-established concepts of non-discrimination, transparency and availability and specifies minimum requirements that distinguish standard-setting from a cartel.”“when the Commission mandates standards bodies to draw up a standard it should have the right to be more demanding on the standardisation process, to ensure that standards are less demanding when it comes to their adoption. We could also think about enticing other standards bodies to adopt such rules, for example by giving their outputs preferential treatment when approving them as European standards. Finally, why not tie the public financing of standards bodies to the existence of good ex-ante rules?”

“We don’t want uniform rules everywhere... Standard-setting for software interoperability is not the same as setting a new standard for, say, digital television or mobile telephony. We should have the right rules in the right contexts...I am convinced that a more visible role for fora and consortia standardisation in Europe will already lead to many improvements here.”

3. “we will draw up detailed guidance on how to analyse a technology buyer's requirements in order to make best use of ICT standards in tender specifications. This is a complex exercise... Many authorities have found themselves unintentionally locked into proprietary technology for decades.” She means lazy procurement or to be more polite, 'inertia sets in'. Or corruption, of course.

4. “I want to put in place a new European Interoperability Framework. This second version of the EIF is foreseen to be adopted at the level of the College of Commissioners, and will therefore rightly be perceived as of a higher status and importance than EIF version 1. Both the Framework and an Interoperability Strategy paper are foreseen for 2010.” It contains a ‘comply or explain’ requirement when governments do not adopt an available open standard, as already applies in the Netherlands.

Most radically: 5. “with my colleagues in the College I will seriously explore all options to ensure that significant market players cannot just choose to deny interoperability with their product. You no doubt remember that I have some experience with reticent high-tech companies: I had to fight hard and for several years until Microsoft began to license missing interoperability information. Complex anti-trust investigations followed by court proceedings are perhaps not the only way to increase interoperability. The Commission should not need to run an epic antitrust case every time software lacks interoperability. Wouldn't it be nice to solve all such problems in one go?... I am looking for a way to ensure companies offer the required information for licensing... Whereas in ex-post investigations we have all sorts of case-specific evidence and economic analysis on which to base our decisions, we are forced to look at more general data and arguments when assessing the impact of ex-ante legislation. Just to be clear, while it is still early days, it is certainly possible that I will go for a legislative proposal.”

This is radical stuff and may take years but is worth the effort!