Block Exemption Horizontal Agreements

Given the diversity of cooperation agreements in certain markets, the EC should consider a much broader block exemption for horizontal cooperation, beyond R&D and specialisation agreements, such as the block exemption for vertical restraints. In addition, the telecommunications sector is part of the digital economy ecosystem and is increasingly competitive with the major global digital players (mainly outside the European Union). Therefore, the restrictions of competition exercised by those actors must be taken into account when assessing sectoral horizontal agreements, including their impact on competition. However, to the extent that vertical agreements are concluded between competitors, they must be assessed on the basis of the principles applicable to horizontal agreements. And would therefore also fall within that scope of that consultation. These include research and development (R&D) agreements, production contracts, purchasing agreements, marketing agreements, standardization agreements and information exchange agreements. On 6 November 2019, the European Commission launched a public consultation on the Horizontal Block Exemption Regulations (“HBERs”) – the Research and Development Block Exemption Regulation (“R&D”) and the Specialisation Block Exemption Regulation (“Specialisation GMOs”) as well as the guidelines for horizontal cooperation agreements. The HFSRs exempt agreements between competitors (horizontal agreements) from the prohibition of Article 101(1) TFEU which, as might be expected, almost certainly fulfil the conditions set out in Article 101(3) TFEU. The current HGL (see paragraph 22) emphasises that where the authorities encourage horizontal cooperation, this does not mean that the exchange is authorised under Article 101. Article 101 applies only if the national law of undertakings provides for anti-competitive behaviour or if undertakings create a legal framework which excludes any possibility of competitive activity (see Article 22).

Horizontal guidelines and FSRs do not provide sufficiently clear guidelines for certain types of horizontal cooperation, resulting in a lack of legal certainty. The guidelines should specifically address sustainability agreements, data sharing agreements, collective bargaining, joint purchasing, joint tendering and co-insurance agreements. Already in 2011, in a report on infrastructure and spectrum sharing on mobile networks, the body of European regulators for electronic communications [1] established that passive sharing agreements were disseminated in all European Member States. Such agreements are now commonplace and do not raise any competition concerns. Regulations (EU) No 1217/2010 (R&D Block Exemption Regulation, `R&D GMOs`) and (EC) No Regulation (EC) No 1218/2010 (Specialisation Block Exemption Regulation – `Specialisation GMOs`), which together are referred to as `horizontal block exemption regulations` (or `HFPs`) of Article 101(1) TFEU, exclude R &D and specialisation agreements for which it is reasonably certain that they fulfil the conditions laid down in Article 101(3) TFEU.