Article 101(1) of the Treaty on the Functioning of the European Union ('the Treaty') prohibits agreements between undertakings that restrict competition unless they generate efficiencies in line with Article 101(3) of the Treaty. This happens if they contribute to improving the production or distribution of goods or services, or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits; they only impose restrictions that are indispensable for the attainment of these objectives and do not eliminate competition in respect of a substantial part of the product in question. The prohibition contained in Article 101(1) of the Treaty covers, amongst others, agreements entered into between actual or potential competitors (so-called 'horizontal agreements').
Commission Regulations (EU) No 1217/2010 (Research & Development Block Exemption Regulation - 'R&D BER') and 1218/2010 (Specialisation Block Exemption Regulation - 'Specialisation BER'), together referred to as the 'Horizontal block exemption regulations' (or 'HBERs'), exempt from the prohibition contained in Article 101(1) of the Treaty those R&D and specialisation agreements for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty. The Commission Guidelines on horizontal cooperation agreements ('HGL') provide binding guidance on the Commission for the interpretation of the HBERs and for the application of Article 101 of the Treaty to other horizontal agreements. The HBERs will expire on 31 December 2022.
The purpose of this review is to allow the Commission to determine whether it should let the two Regulations lapse, prolong their duration or revise them.
According to Better Regulation Principles, the procedure is divided in two steps: (i) an evaluation phase and (ii) an impact assessment phase.
The objective of the evaluation phase is to gather evidence on the functioning of the current Horizontal Block Exemption Regulations and the accompanying Guidelines on horizontal cooperation agreements. In line with the Better Regulation Principles, this evaluation will be based on five evaluation criteria: effectiveness, efficiency, relevance, coherence and EU added value. The evaluation phase includes a public consultation process allowing interested stakeholders to provide feedback and contribute suggestions. It will also take account of the Commission's recent case practice with regard to horizontal cooperation. It will also draw on the considerable experience of national competition authorities with enforcing the EU competition rules in this area as well as relevant European and national case law.
The objective of the impact assessment phase is to inform and support the decision of the Commission to determine whether it should let the Regulation lapse, prolong its duration or revise it on the basis of the evidence gathered during the evaluation phase. It will verify the existence of any problem related to the current functioning of the Horizontal Block Exemption Regulations identified during the evaluation phase, explore the underlying causes, assess whether EU action is needed, and analyse the advantages and disadvantages of available solutions.
Current legislation applicable to horizontal agreements.
The Consultation strategy document for the evaluation of the Horizontal Block Exemption Regulations.
A. Evaluation phase
The progress of the evaluation phase can be followed on the website of better regulation.
The evaluation roadmap was published on 5 September 2019. The deadline for stakeholders' feedback expired on 3 October 2019.
The public consultation was launched on 6 November 2019. The deadline for stakeholders to fill in the questionnaire expired on 12 February 2020.
1. Results of the public consultation
77 stakeholders have filled in the online questionnaire. Their replies are available here and related annexes here (updated on 7 April 2020 with an additional annex).
8 other stakeholders also submitted their opinion to the Commission in the context of the public consultation but not through the Commission’s Better Regulation page. These submissions are available here .
Factual summary of the contributions received in the context of the open public consultation on the evaluation of the Horizontal Block Exemption Regulations.
2. Contributions of the NCAs to the evaluation of the HBER
Summary of the contributions of the National Competition Authorities to the evaluation of the R&D and Specialisation Block Exemption Regulations and the Commission Guidelines on Horizontal Cooperation Agreements.
3. Evaluation support study
Support study for the evaluation of the Horizontal Block Exemption Regulations and the Horizontal Guidelines (including executive summaries in DE and FR).
4. Staff Working Document
Staff Working Document and its annexes summarising the results of the evaluation of the HBERs and Horizontal Guidelines (“Evaluation SWD”) was published on 6 May 2021. An Executive Summary is available in EN, DE and FR.
B. Impact assessment phase
The progress of the impact assessment can be followed on the Better Regulation Website.
Inception impact assessment
The inception impact assessment was published on 7 June 2021. The deadline for stakeholders' feedback expired on 5 July 2021. Fourteen stakeholders gave feedback and their submissions are published on the Better Regulation Website.
Subsequently, on 13 July 2021, the Commission launched a public consultation to get more specific feedback, in particular on the impact of the policy options set out in the IIA on various parameters. To this end, it published an online questionnaire which stakeholders were invited to use to provide their experience and views. The deadline for providing such feedback was 5 October 2021. 67 stakeholders provided their feedback via the EU Survey tool. Their replies are available on the Better Regulation webpage. A factual summary of the responses will be available soon. In addition, 4 stakeholders provided replies to the consultation directly to the Commission team.
The Commission services also launched several targeted questionnaires on R&D, specialisation, information exchange, commercialisation and standardisation agreements. Stakeholders that have relevant experience with these types of agreements were requested to provide their views in these more detailed questionnaires. The deadline for submitting responses was 30 September 2021. The views of respondents have been incorporated in the factual summary
The Commission also sent a questionnaire to the National Competition Authorities of the Member States and to EFTA and its members. 16 National Competition Authorities submitted replies. A factual summary of these replies will be available soon.
On 13 September 2022, the Commission organised an online workshop to consult stakeholders on its proposals for revising the R&D Block Exemption Regulation. A summary of the workshop is available here.
Expert reports on the review of the Horizontal Block Exemption Regulations and HGL:
- Expert report on DG COMP proposals to amend the R&D Horizontal Block Exemption Regulation: A review on behalf of the publicly funded Research Organisation (PRO) & University sectorby ASTP;
- Expert report onR&D cooperation agreements concluded by SMEs – Exempted under the EU R&D Block Exemption Regulationby Björn Lundqvist;
- Expert report on Specialisation agreements and SMEs by AEDC;
- Expert report on Horizontal Guidelines on purchasing agreements: Delineation between by object and by effect restrictionsby Richard Whish and David Bailey;
- Expert report on Incorporating Sustainability into an Effects-Analysis of Horizontal Agreementsby Roman Inderst.
On 1 March 2022, the Commission launched a public consultation on the draft revised Horizontal Block Exemption Regulations and Horizontal Guidelines. This consultation is available here.
Directorate-General for Competition – Unit A.1 – Antitrust Case Support and Policy
Please always indicate the reference number in your correspondence: HT.5454 Review Horizontal Block Exemption Regulations
Directorate-General for Competition