Competition law as a tool to ensure the legitimacy of standard-setting by European standardisation organisations?

Since the criteria which the European Commission in its Horizontal Cooperation Guidelines puts forward to assess the compatibility of standardization agreements with Article 101 TFEU, resemble the criteria for input and output legitimacy as defined by Scharf, the need for ESOs to comply with EU competition law would contribute to the legitimacy of the standards they create. In the case of HES, however, it is unclear whether these fall within the scope of the notion “standardization agreements” as used in the Horizontal Cooperation Guidelines and more generally, whether the HES can be considered to fall within the scope of Article 101 TFEU or EU competition law at law. Up until now, the Commission and the Court of Justice have smartly avoided taking a position on this question, either by stating that competition law applies in so far as the ESOs qualify as associations of undertakings or by stating that even if competition law would apply, the internal rules of the ESOs would guarantee compliance with the competition rules (absent evidence that they are not respected in a particular case). Empirical research however points out that there are good reasons to call the latter assumption into question.