EU: Evaluation results for horizontal agreements between companies

Jun 2, 2021 Benn-Ibler Rechtsanwälte

On 6 May 2021 the European Commission published the findings of the evaluation of the two horizontal block exemption regulations on Research & Development and specialization agreements (“R&D BER” and “Specialization BER” respectively, together “HBERs”), together with the Horizontal Guidelines.

The findings of the evaluation are as follows:

·        The HBERs and Horizontal guidelines are still relevant.

·        The effectiveness of some areas can be improved. In particular, the HBERs and Horizontal Guidelines need to be adapted to economic and societal developments, such as digitization and sustainability.

The following points are considered issues with regard to the regulations:

·        The conditions for exemption in the R&D BER may no longer allow for the identification of which R&D agreements are beneficial to competition. The question was raised in particular as to the requirements for full access to the results of the R&D cooperation as well as to pre-existing know-how.

·        The scope of the Specialization BER is considered too narrow. Definitions relevant to the scope of the regulation should be made clearer.

·        “Safe Harbors” in the form of market share thresholds make it easier to assess whether an agreement could benefit from an exemption. Currently, the HBERs provide market share thresholds for R&D (25%) and specialization (20%) agreements.

·        Some provisions of the HBERs and Horizontal Guidelines are considered unclear or overly strict, in particular with respect to information exchange, R&D, production, commercialization and standardization agreements.

·        The HBERs and the Horizontal Guidelines offer limited guidance with regard to certain market developments of the last ten years, particularly in view of digitization and sustainability.

·        Finally, the Horizontal Guidelines  do not provide sufficient legal certainty for the self-assessment of agreements that do not fall under the listed categories.

The issues identified during the evaluation will be examined in an impact assessment so that adjustments to the rules can be made.

European Commission - Press release (Brussels, 06.05.2021)