The European Commission has published on 6 May 2021 a Staff Working Document that summarises the findings of the evaluation of the two horizontal block exemption regulations on Research & Development and specialisation agreements (“R&D BER” and “Specialisation BER” respectively, together “HBERs”), together with the Horizontal Guidelines.
The aim of the evaluation was to allow the Commission to determine whether it should let the HBERs lapse, prolong their duration or revise them. In view of the findings of the evaluation, the Commission will now launch an impact assessment to look into the policy options for a revision of the rules.
Executive Vice-President Margrethe Vestager, in charge of competition policy, said: “The evaluation has shown that the rules on horizontal agreements between companies and the Horizontal Guidelines are useful tools for businesses. At the same time, the evaluation has identified several areas where the rules are not sufficiently adapted to the digitisation and the pursuit of sustainability goals. The Commission will now reflect on how to revise these rules in order to ensure that they remain fit for purpose.”
In July 2019, the Commission launched the review of the HBERs, which will expire on 31 December 2022. In parallel, the Commission launched the review of the accompanying Horizontal Guidelines. During the evaluation, the Commission collected evidence to understand how the rules have functioned since their adoption in 2010 and 2011. This evidence includes, notably, stakeholder contributions gathered in a public consultation that took place between November 2019 and February 2020. In addition, the Commission took into account the responses received in reply to the 2020 call for contributions on Competition Policy and the Green Deal.
As Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements states, horizontal co-operation agreements may distortion the competition, by object or by effect. This is, for example, the case if the parties agree to fix prices or output or to share markets, or if the co-operation allows the parties to maintain, gain or increase market power and thereby is likely to give rise to negative market impact with respect to prices, output, product quality, product variety or innovation. ECOPNET (European Cooperation & Partnership Network) pays close attention to guidelines published by the Commission that provide additional guidance specific to the competition assessment of horizontal co-operation agreements and aims to inform its partners on the competition regulation and policy developments in the EU.
The findings of the evaluation
The evaluation has shown the following:
The HBERs and the Horizontal Guidelines are still relevant, as they provide legal certainty to businesses with respect to their horizontal cooperation agreements and they simplify administrative supervision by the Commission, the national competition authorities and national courts.
Several areas were identified where their effectiveness can be improved. In particular, the HBERs and Horizontal Guidelines need to be adapted to economic and societal developments, such as digitisation and the pursuit of sustainability goals. In addition, some of the provisions in the HBERs are viewed as rigid and complex, while others are considered unclear and difficult to interpret by businesses.
Next steps
During the next weeks, the Commission will launch the impact assessment phase of the review to look into the issues identified during the evaluation with a view to having revised rules in place by 31 December 2022 when the current rules will expire.
Stakeholders will have the possibility to comment on the inception impact assessment and to provide their views in the context of a public consultation, which is planned for the middle of this year. At the beginning of next year, the Commission will publish a draft of the revised rules for stakeholder comments.
Source: European Commission Press Corner