The European Commission has adopted revised regulations and guidelines on Block Exemption Regulations on Research and Development (‘R&D’) and Specialisation agreements after a comprehensive evaluation and review of current rules.
The updated HBERs and Guidelines offer businesses improved and current direction for evaluating the appropriateness of their horizontal cooperation agreements in accordance with EU competition regulations.
The effective date for the new HBERs is set for 1 July 2023, while the Guidelines will be in effect upon their publication in the Official Journal of the EU.
The revised rules adopted today introduce the following changes:
- Expand the scope of the Specialisation Block Exemption Regulation to cover more types of production agreements concluded by more than two parties. In addition, the revised rules introduce a more flexible approach to the calculation of the market shares for the purpose of applying the block exemption. They also include specific guidance on how to apply the latter.
- Increase clarity and flexibility as regards the calculation of market shares for the purpose of applying the R&D Block Exemption Regulation and include guidance on how to apply it. In particular, the revised rules give more prominence to the protection of innovation competition, especially in cases where it is not possible to calculate market shares, and in this context emphasizes the powers of the Commission and national competition authorities to withdraw the benefit of the exemption in individual problematic cases.
- Update the Introductory Chapter of the Guidelines with the latest case law on key concepts such as concerted practices, potential competition, restrictions by object and by effect, and ancillary restraints. This chapter also contains new guidance on the application of Article 101 TFEU to agreements between joint ventures and their parent companies, as well as expanded guidance on how to apply the Guidelines to agreements that involve cooperation on more than one type of activity (e.g., production and commercialization).
- A new section on Mobile Telecommunications Infrastructure Sharing Agreements reflects recent enforcement practice in the chapter of the Horizontal Guidelines on Production Agreements. This new guidance sets out factors relevant for the assessment of these agreements and includes a list of minimum conditions that companies must comply with to reduce the risk of infringing competition rules.