New Block Exemptions And Guidelines For Horizontal Agreements
Further to the enactment of the new Vertical Restraints Block Exemption (which dates back to 1999, but has been in full force and effect since June 2000), the European Commission has decided to celebrate the end of year 2000 with a new regulatory effort.
At the end of November, the Commission adopted new competition rules concerning so-called horizontal co-operation agreements, i.e. co-operation agreements between competing companies. In particular, the Commission has reviewed its past policy in the treatment of research and development and specialisation agreements and – within the wider review undertaken by the Commission in order to streamline and adapt EC competition law – has released new rules and guidelines.
As a result, the Commission has adopted a block exemption regulation on the application of Article 81 § 3 of the Treaty to categories of research and development agreements, a block exemption regulation on the application of Article 81, § 3 of the Treaty to categories of specialisation agreements, and guidelines on the applicability of Article 81 to horizontal cooperation agreements which apply to R&D, production, marketing, purchasing, as well as standardisation and environmental agreements.
The new policy mirrors the trend reflected in the Vertical Restraints Block Exemptions – the long-solicited shift from a regulatory, legalistic approach to a more economic-oriented attitude towards all agreements that are capable of significantly affecting competition within the Common Market.
This is particularly the case where competing undertakings are likely to collude and therefore such "horizontal" arrangements should be regulated so as to strike a reasonable compromise between the need for a more efficient co-operation between companies and the protection of competition.
Likewise, the Commission has adopted a threshold mechanism – which it has set at 20% for specialisation agreements and at 25% for research and development agreements – for the application of the block exemptions.
The guidelines describe the general approach which should be followed when assessing horizontal co-operation agreements and set out a common analytical framework, not only with reference to R&D and specialisation agreements, but also in respect of other kinds of co-operation arrangements.
The turn of the century has therefore endorsed the Commission’s attempt at modernising EC competition law by means of innovations both in attitude and legislation on all major points involved in the application of Article 81. What is still to be seen, however, is whether and how national authorities – which have been increasingly entrusted by the Commission with the application, on a national scale, of Article 81 and block exemptions – will adopt the new tools, and how further de-centralisation in the application of anti-trust rules will be pursued.
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