The European Commission adopted a revised Horizontal Block Exemption Regulation in terms of Research and Development (R&D) and Specialization Agreements (HBER). The Regulation and the Guidelines aim to provide clearer and more up-to-date guidance to help businesses assess the compliance of horizontal cooperation agreements with EU competition rules and recent enforcement practices. Accordingly, the changes introduced by the new revised rules are as follows;

  • The scope of the Specialization Group Exemption Regulation has been extended to cover more types of production agreements concluded by more than two parties and guidance has been provided.
  • Clarity and flexibility regarding the calculation of market shares under the R&D Group Exemption Regulation has been increased and guidance has been provided. Accordingly, the Commission and national competition authorities are authorized to withdraw the right to benefit from the group exemption in cases where it is not possible to calculate the market share which aims to protect the innovation competition.
  • The preamble of the Horizontal Guidelines has been updated in line with recent case law, followed by new guidance on the application of Article 101 TFEU to agreements between joint ventures and their parent companies.
  • A new chapter on Mobile Telecommunications Infrastructure Sharing Agreements has been published, setting out the factors for assessing these agreements and including a list of minimum conditions to be complied with in order for companies to reduce their risk of infringing competition rules.
  • The section of the Guidelines on Purchasing Agreements has been expanded to reflect recent practice. This section clarifies the distinction between joint purchasing and buyer cartels, and clarifies that joint purchasing includes arrangements in which buyers jointly negotiate the terms of their purchases, as well as arrangements in which each buyer makes purchases independently.
  • The section of the Guidelines on Commercialization Agreements has been expanded to create a new section on procurement consortia and to include guidance on the bid rigging distinction.
  • The section of the Guidelines on Information Exchange has been expanded to provide guidance on (i) the concept of commercially sensitive information; (ii) the types of information exchange that may objectively amount to restriction of competition; (iii) the potential pro-competitive effects of data repositories; (iv) indirect forms of information exchange, including hub-and-spoke arrangements; (v) anti-competitive signaling through public announcements; and (vi) measures that firms can take to avoid infringements.
  • The section of the Guidelines on Standardization Agreements has been revised to provide that (i) it is not anticompetitive for the parties to a standardization agreement to disclose the maximum cumulative royalty rate and (ii) participants must disclose their relevant intellectual property rights.
  • A new section on sustainability agreements has been added to the Horizontal Guidelines to clarify that antitrust rules do not prevent agreements between competitors for sustainability purposes. The new rules provide a soft safe harbor for sustainability standardization agreements that meet certain conditions. In addition, the types of benefits that can be taken into account are defined and it is also clarified how a sustainability agreement can be exempted. 

Overall, the Regulation and the Guidelines provide a safe harbor where certain agreements are exempted from competition rules. 

(European Commission - 01.06.2023)



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