EU Commission Invites Comments On Revised Horizontal Agreement Rules

The European Commission launched a public consultation today, inviting all interested parties to comment on two draft revisions to the Horizontal Block Exemption Regulations on Research & Development (“R&D”) and Specialisation agreements (“R&D BER” and “Specialisation BER” respectively, together “HBERs”) and the draft revised Horizontal Guidelines.

The draft revised HBERs and Horizontal Guidelines follow a review and evaluation process launched in September 2019. This aims at adapting the current rules in specific areas where the evaluation found that they were not fully adjusted to the economic and societal developments that occurred over the last ten years, such as the digital and green transition. Moreover, some of the provisions in the HBERs were considered rigid and complex, and the level of legal certainty provided by the Horizontal Guidelines was deemed uneven for the different types of horizontal cooperation agreements covered.

Executive Vice-President Margrethe Vestager, in charge of competition policy, said: “The revision of the Horizontal Block Exemption Regulations and Guidelines is an important policy project as it clarifies for businesses when they can cooperate with rivals. Horizontal cooperation may lead to substantial economic and sustainability benefits, including support for the digital and green transition. The proposed revised rules aim to keep up with developments so that beneficial cooperation can take place, for example when it comes to sustainability or data sharing. We now invite interested parties to provide comments on our draft revised rules, which will help us finalise the new rules to enter into force on 1 January 2023”.

The proposed changes, as set out in more detail in the explanatory note accompanying the draft revised HBERs and Horizontal Guidelines, aim to:

• Make it easier for companies to cooperate in areas such as R&D and production by: (i) clarifying the text of the HBERs and Horizontal Guidelines; (ii) adding new guidance on the application of the HBERs; and (iii) slightly expanding the scope of the Specialisation BER to cover, for example, unilateral specialisation agreements concluded by more than two parties.
• Ensure a continued effective protection of competition by exempting (i) R&D agreements concerning entirely new products, technologies and processes and (ii) R&D efforts directed towards a specific objective but not yet specific in terms of the product or technology from EU competition rules only if there are sufficient comparable competing R&D efforts.
• Include a new chapter on the assessment of horizontal agreements pursuing sustainability objectives as well as new guidance on data sharing, mobile infrastructure sharing agreements and bidding consortia.
• Simplify the administrative supervision by the European Commission and National Competition Authorities (“NCAs”) by streamlining and updating the general framework of assessment of horizontal cooperation agreements.

Pro-competitive horizontal integration between companies is considered by European legislators and advocates, essential to the continent’s development of the technologies that will allow it to transition towards green and digital economies, strengthening the European internal market. The HBERs provide guidelines for companies who wish to enter such pro-competitive agreements, allowing them to avoid the restrictions of the EU’s antitrust laws.

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