Overview
Since launching its review programme in September 2019, the Commission has been working to update its Horizontal Guidelines and two sets of block exemptions, R&D and Specialisation, both of which are due to expire on December 31, 2022. The Commission consulted widely (to which we contributed) and has just published proposed drafts of each in a final round of consultations, which will expire on April 26, 2022. Alongside this programme, the Commission is also updating the Verticals Block Exemption and the Market Definition Guidelines, for which further drafts are expected in the coming months.
Highlights of the proposed updates are as follows:
R&D Block Exemption
- There will be a narrowing of the available exemption to exclude R&D agreements where less than 3 competing R&D efforts will remain as a result of the proposed cooperation.
- Some simplifications (in definitions and in grace periods for increasing market shares) to assist parties.
- Calculation of market shares by reference to the preceding year (or a 3-year average).
- Providing for the power of withdrawal of the benefit of the block exemption.
- Introduction of a new section in the Horizontal Guidelines providing clarification to businesses to better understand how the block exemption works.
- Horizontal subcontracting will be covered.
- The block exemption may cover more than two parties.
- Similar changes to those in the R&D block exemption (on grace periods, market share calculations, power of withdrawal).
- There will be a new section in the Horizontal Guidelines to offer help to businesses to better understand how it works and how the concepts and definitions operate.
- The draft Guidelines will also address network sharing agreements.
- Joint Purchasing agreements
- More guidance on by object and on by effect restrictions
- Guidance on potential upstream harm
- Guidance on pass-on of benefits to consumers
- Commercialisation agreements
- Guidance on agricultural products
- Guidance on output limitation risks
- Clarification on the markets which may be affected
- A new section on bidding consortia
- Information exchange
- More guidance on different types of information exchanges and different types of data sharing
- Guidance on information sharing in the M&A context and also in relation to EU regulatory initiatives
- Identification of classes of commercially sensitive information
- Guidance on by object infringements
- Guidance on common topics of concern, including: aggregation, ‘publicly available’ information, indirect information sharing (hub and spoke), third party facilitation of exchanges
- A new section on measures to limit sharing and control of data gathered
- Standardisation agreements
- Guidance on increased flexibility in the effects analysis
- More elements for assessing whether a proposed licence fee is FRAND
- Sustainability agreements