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.
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