New guidance by the European Commission?!

July 14, 2023
July 14, 2023
New guidance by the European Commission?!

On 1 June 2023, the Commission issued its revised Horizontal Guidelines (Horizontal Guidelines) as well as the revised Block Exemption Regulations for Research and Development (R&D BER) and Specialization Agreements (Specialization BER). The Commission also published a Q&A document on the adoption of the new rules. The following summarizes some key changes and puts a focus on the changes most relevant in practice:

With regard to the revised Horizontal Guidelines:

- The chapter on Information Exchange has been revised and expanded. The chapter now includes specific examples of which information the Commission does and does not consider competitively sensitive. Furthermore, the scope of which exchange of information is considered to be an infringement by “object” was expanded (no longer limited to the exchange of future intentions regarding prices or output volumes). The guidelines also provide some guidance on what can be done to mitigate the risk of antitrust infringements when exchanging information (and summarize the safeguards already common in practice).

- The chapter on Purchasing Agreements has not been substantially revised. However, wage fixing is now mentioned as a restriction of competition by object. With this, the Commission is picking up the international trend of antitrust regulator to pay closer attention to antitrust law in labour markets (more on that here and here).

- The new chapter on Bidding Consortia, a topic very relevant in practice, offers more guidance now, but does – in our view – not lead to any substantial changes in practice. However, as we already mentioned here, some important principles are now laid down in the Horizontal Guidelines and provide companies with more legal certainty.

- Perhaps the biggest novelty (in terms of scope) but no radical greener interpretation of antitrust rules: The chapter on Sustainability. Offering six cumulative conditions as a “soft” safe harbour, it is – so far –more extensive than most sustainability guidance issued by national competition authorities in Europe. Additionally, businesses are specifically invited to seek informal guidance from the Commission regarding potential sustainability collaborations. However, the real impact as well as the application in difficult and complex cases may remain questionable.

- The Horizontal Guidelines also touch a topic which is subject to various open questions in practice, namely the application of Art. 101 TFEU when it comes to agreements between Joint Ventures and their parent companies. While the Commission states that it will generally not apply Art. 101 TFEU to such agreements, it also clarifies that this will only be the case where the parent companies exercise decisive influence over the joint venture. Moreover, the Commission’s names several scenarios in which it will continue to apply Art. 101 TFEU. Therefore, it will remain difficult to assess to what extent such agreements fall under Art. 101 TFEU.

Regarding the R&D BER:

- Very important for many: Different to the draft version, the Commission dropped the plan for the R&D BER to only provide a safe harbor when there are at least more than two additional competing R&D efforts comparable with those of the parties to the R&D agreement. This approach was heavily criticized when the draft regulation was published and the fact that the Commission dropped this requirement will significantly facilitate the assessment of R&D agreements under the R&D BER.

- The R&D BER also introduces a simplified calculation method for market shares. However, the market share threshold for benefitting from the safe harbor of the R&D BER remains the same (25%).

- Furthermore, in case the market shares of the parties increase above the threshold of 25%, the parties will still benefit from the safe harbor of the R&D BER for a period of two consecutive calendar years, notwithstanding the increase (grace period).

Concerning the Specialization BER:

- While the market share threshold for the Specialization BER to apply remains the same(20%), the regulation now includes a simplified calculation method for market shares as well as a grace period of two years in case the market shares exceed 20%.

- The Specialization BER now also applies to all types of specialization and production agreements between more than two parties. This might be particularly helpful for small and medium-sized enterprises, as cooperations with more than one party can now benefit from a safe harbor.