EU přijala nová pravidla spolupráce konkurenčních podniků

EU adopts new rules on cooperation between competitors

On 1 June 2023, the European Commission adopted new Horizontal Block Exemption Regulations, which will be accompanied by a revision of the Horizontal Guidelines, with the aim of adjusting the rules for granting horizontal block exemptions under Article 101 of the Treaty on the Functioning of the European Union ("TFEU").

Within the European single market, agreements between undertakings that restrict or otherwise distort competition are generally prohibited. On the contrary, under certain conditions, horizontal cooperation agreements can promote competition and lead to significant economic advantages by allowing companies to respond to increasing competitive pressure and changing market dynamics. They can be a means to share risks, save costs, increase investment, share know-how, increase product quality and variety and accelerate innovation. For these purposes, the TFEU provides in Article 101(3) a general exemption from the above prohibition for certain types of agreements which would otherwise be covered by the prohibition. Through the so-called 'block exemptions', the European Commission further defines certain categories of agreements for which the conditions of the above exemption are generally deemed to be fulfilled.

As the name itself implies, horizontal block exemptions concern horizontal agreements. Horizontal co-operation agreements are agreements between competitors at the same level of the relevant market concerned which aim at co-operation in certain areas such as research and development, production, purchasing, commercialisation, standardisation or exchange of information. The opposite of horizontal agreements are vertical agreements, i.e. agreements between competitors at different levels of the relevant market (e.g. distribution agreements).

Two new Regulations are at the heart of the revision. The first regulates block exemptions for R&D, while the second focuses on certain categories of specialisation agreements. The changes, which the Regulations pursue in unison, are generally aimed at clarifying and facilitating the granting of block exemptions. To this end, both Regulations simplify and clarify the mechanism for calculating the market share threshold at which a block exemption is no longer applicable. For the sake of completeness, the market share threshold is 25 % for the R&D block exemption and 20 % for specialisation agreements (this is the combined market share of all parties to the agreement in question).

The amendments to the accompanying Horizontal Guidelines, which serve as an important interpretative guide, should not be overlooked, as they include a new section on so-called sustainability agreements between R&D undertakings and related exemptions. These changes will undoubtedly make a significant contribution to the development of ESG initiatives and related non-financial reporting, which has become increasingly important in the EU in recent years.

The regulations will come into force on 1 July 2023 and are expected to remain in force for another 12 years. At the same time, a transitional period of 2 years is foreseen, during which agreements which do not comply with the new rules but which meet the conditions of the current block exemptions will continue to benefit from the block exemption. For the sake of completeness, we add that the revision of the horizontal block exemptions is systematically linked to the revision of the vertical block exemptions that took place in 2022.

We are closely monitoring further developments in competition law for you. If you would like more detailed information, please also contact the authors of this article or other members of EY Law or the EY team with whom you work, if appropriate.

Authors:

Vladimír Petráček

František Schirl

Filip Pavlica