Germany: Newsletter Antitrust Law December 2010

On 14 December 2010 the European Commission published new rules on cooperation agreements between competitors. The reform package includes revised guidelines for appraising horizontal agreements, as well as the two new block exemption regulations for categories of research and development agreements and for categories of specialisation and production agreements. Both regulations enter into force on 1 January 2011, but grant a transitional period of two years for those agreements which fulfil the exemption criteria of the old regulations yet do not fall under the new regulations. The amendments and innovations essentially concern the areas information exchange, standardisation, as well as research and development agreements between competitors.

1. The essential innovations

1.1 Information exchange between competitors

For the first time, the European Commission has expressed itself clearly and comprehensively in its new horizontal guidelines on how the information exchange between competitors is to be appraised under European antitrust law.

The exchange of information between companies can have a considerable detrimental effect upon competition. The Commission has made it clear that it generally considers the exchange of "individualised" information, that is to say information that is allocable to a specific market participant, concerning future market conduct to be a violation of European antitrust law. Furthermore, the mere unilateral publication of sensitive data of strategic economic importance by a company can constitute a violation of antitrust law in an individual case. This is especially – but not exclusively – the case with respect to future price or quantity conduct.

However, the Commission also acknowledges the fact that an exchange of information can encourage competition if it enables companies to collect market data and use such data to operate more efficiently and better meet their customers' needs. For this reason, other than in a few individual cases (e.g. exchange within a close oligopoly), it considers the exchange of aggregated market data (e.g. sales data or data on the costs of advance performance or components) to be less harmful to competition, because this does not as easily allow conclusions on company-specific data. Also permissible in the majority of cases is the exchange of historical data. Information to which all market participants and customers have equally easy access may also be exchanged. However, in the Commission's opinion, it is not already considered public data within the meaning of this appraisal if the costs associated with the procurement of the data are so high that they prevent companies and customers from procuring such information.

1.2 Standardisation agreements/standard terms

In its statements on standardisation agreements and standard terms, the Commission has now formulated "safe harbour" provisions for the first time. If the following criteria are fulfilled, the Commission will therefore generally not oppose a standardisation agreement:

  • All of the relevant competitors on the market have had the opportunity of unrestricted participation in the procedure for adopting the standard in question.
  • The procedure for the adoption of the standard in question is transparent, i.e. it must be ensured that the market participants are able to inform themselves about forthcoming, current and completed work and on standards concerning intellectual property rights.
  • Actual access to the standard at fair, reasonable and non-discriminatory conditions must be ensured; especially if intellectual property rights are to be included in the standard, the participants must provide a written, irrevocable commitment to grant third parties licences at fair, reasonable and non-discriminatory conditions ("FRAND commitment").
  • If intellectual property rights are essential for the implementation of a standard under development, the participants must provide good faith disclosure.

In the Commission's opinion, standard terms are not likely to give rise to restrictive effects on competition if

  • the unrestricted participation of competitors on the relevant market in the actual determination of the standard terms is ensured and
  • the established standard terms are non-binding and effectively accessible for anyone.

1.3 Research and development agreements

The amendments in the new block exemption regulation for categories of research and development agreements essentially permit – in connection with the new horizontal guidelines – a simpler and clearer handling of the rules governing a cooperation amongst competitors in this area which is permissible pursuant to antitrust law. Additionally, the scope of application of the regulation has been extended. Commissioned research now also falls under the regulation, i.e. cases where one party merely finances the R&D activities of another party. Moreover, the new legal situation allows greater possibilities for the joint exploitation of R&D results.

In all other respects, the system of block exemptions per regulation remains untouched. The new regulation deems agreements to be in conformity with antitrust law if

certain market share thresholds are not exceeded and
the agreements contain no "hardcore" restrictions (e.g. price fixing for the sale of contractual products).

2. What needs to be done?

  • You must critically appraise your current practices related to procuring of market information with a view to possible violations of antitrust law. The Commission already deems the acceptance and use of strategic data that has been unilaterally transmitted or published by a competitor to be unlawful, coordinated conduct between competitors.
  • Existing R&D. specialisation and production agreements must be examined by 31 December 2012 at the latest as to their compliance with the new block exemption regulations.
  • If you participate in standard terms or standardisation agreements, you should make sure that the procedure complies with the rules set down in the new horizontal guidelines.

Do you require further information on this topic? If so, please feel free to contact us at any time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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