Cooperation Between Competitors in the Green, Digital Age…
European Commission Modernises Horizontal Exemptions and Guidance
The EU Commission has introduced revisions to the Horizontal Block Exemption Regulations (HBERs) and Horizontal Guidelines, bringing significant changes to the landscape of competition law. The revisions introduce new provisions regarding sustainability agreements, information exchange, R&D and specialization regulations, standardization agreements, purchasing agreements, commercialization agreements, and bidding consortia.
One notable addition is the inclusion of a new chapter on sustainability agreements in the Horizontal Guidelines, reflecting the EU's commitment to the Green Deal. The guidelines clarify that competition rules do not impede agreements among competitors that serve environmental, social, or sustainability objectives. They provide a list of agreements unlikely to raise concerns, while also outlining the conditions for assessment under competition law.
The chapter on information exchange has been extensively revised to address issues arising from digitalization and data processing. The updated guidelines broaden the scope of "information" and provide guidance on assessing commercially sensitive data exchanges. Although there is no safe harbor for information exchange, the guidelines offer measures to minimize competition law infringements.
Changes have also been made to the R&D and specialization regulations, introducing more flexibility in applying exemptions and empowering the EC and National Competition Authorities to withdraw exemptions in certain cases. The guidelines provide guidance on production agreements, specialization agreements, and mobile telecommunications infrastructure sharing agreements.
Other revisions include updated chapters on standardization agreements, standard terms, purchasing agreements, and commercialization agreements. A new section has been added on bidding consortia, emphasizing the need to prevent bid rigging in public and private procurement tenders.
The revised HBERs and Horizontal Guidelines will come into force in July 2023, providing businesses with greater legal certainty and flexibility. Companies are advised to review and update their existing and planned horizontal cooperation agreements to ensure compliance with the new rules and assessment criteria, ensuring that their agreements do not restrict competition or qualify for exemption under the HBERs or Article 101 (3) TFEU. Regular monitoring and review of agreements are essential to prevent problematic restrictions and maintain compliance with competition law.
