On Thursday 6 May, the European Commission found that certain rules under the two horizontal block exemption regulations on Research and Development and specialisation agreements ‘'R&D BER’ and ‘Specialisation BER’ respectively, together ‘HBERs’) could be improved.
The Commission has published a Staff Working Document that summarises the findings of the evaluation of the two regulations and 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. The Commission will review the rules.
The evaluation showed that the HBERs and the Horizontal Guidelines are still relevant, but that their effectiveness can be improved:
- the conditions for exemption in the R&D BER may no longer allow for the identification of all pro-competitive R&D agreements. Stakeholders have questioned in particular the requirements for full access to the results of the R&D and access to pre-existing know-how;
- the scope of the Specialisation BER is considered too narrow and more clarity is needed on some of the definitions of the scope of the Regulation;
- stakeholders generally consider that safe harbours in the form of market share thresholds ease assessing whether an agreement could benefit from an exemption. Currently, the HBERs provide market share thresholds for R&D (25%) and specialisation (20%) agreements. In addition, the Horizontal Guidelines declare that joint purchasing and commercialisation agreements where the participants have only limited market power (15%) are also unlikely to have restrictive effects on competition. Some stakeholders consider that the various market share thresholds are too low to exempt all horizontal 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, commercialisation and standardisation agreements;
- these acts offer limited guidance with regard to market developments that have taken place over the last ten years, notably digitalisation and the pursuit of sustainability objectives;
- stakeholders consider that the Horizontal Guidelines do not provide sufficient legal certainty for the self-assessment of agreements that do not have a dedicated chapter, such as agreements pursuing sustainability objectives, data sharing, data pooling and network sharing agreements.
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. A public consultation will take place in mid-2021. In early 2022, the Commission will publish revised draft rules.
Link to the report: https://bit.ly/3tnTEfu (Original version in French by Lionel Changeur)