The exemption shall not apply to specialisation agreements aimed directly or indirectly at: since cooperation in the field of specialisation generally contributes to improving the production or distribution of products, facilitating technical and economic progress and rationalising the production and use of products benefiting, inter alia, consumers; this Regulation exempts not only agreements the main objective of which is specialisation, but also all agreements directly related to cooperation in the field of specialisation and necessary for their implementation, provided that the combined market share of the parties does not exceed 20 % of the relevant market. The Commission generally refers to these agreements as `marketing agreements`. This applies to joint selling, where the parties agree on all commercial aspects related to the sale of the product, including the price. However, it also includes more limited forms of cooperation, such as. B distribution agreements (e.g. a party engages its competitor to distribute its products in a specific territory), customer service, advertising or logistics. The agreement must contribute to improving the production or distribution of goods or to promoting technical or economic progress. To promote cooperation between enterprises in the field of specialisation in the manufacture of goods and trade in services, while maintaining effective competition within the common market. The restriction of competition contained in the agreement must be essential for the achievement of the efficiency gains identified. This is arguably the biggest hurdle that many specialization and production communities struggle to overcome. In the case of agreements between non-competitors, the RdBER applies for the duration of the R&D phase. If the results are shared, the exemption will apply for seven years from the date the contract products are first placed on the EU market. If the parties continue to jointly exploit the results of the R&D after the end of the 7-year period, the block exemption shall continue to apply if the parties` combined market share does not exceed 25 %.
An agreement between companies on the conditions under which they specialize in the production of a narrow or specific range of goods and/or services. Specialization agreements can help improve the production or distribution of goods, as the parties focus on the production of certain products and can thus work more efficiently and supply the products at a lower cost. Specialization agreements are divided into agreements in which one participant abandons the manufacture of certain products or the provision of certain services in favor of another participant (unilateral specialization); Agreements in which each participant abandons the manufacture of certain products or the provision of certain services in favour of another participant (mutual specialization); and agreements under which participants jointly manufacture certain products or provide certain services (co-production). This issue is covered by a specific block exemption regulation. In December 2010, the European Commission published updated guidelines on the application of Article 101 to horizontal cooperation agreements (the Guidelines).1 At the same time, revised block exemption regulations were adopted providing for an automatic exemption under Article 101(3) for certain types of `specialisation agreements`2 and `research and development agreements`3. This quick guide summarises the competition law assessment of cooperation agreements between competitors under EU competition law. The specialization BER does not represent a radical break from the previous regulatory system for specialization and co-production agreements. The amendments to this type of agreement are relatively minor in nature and represent an update rather than a complete revision of the existing rules. Parties familiar with the previous arrangement should therefore have no difficulty navigating the BER specialization. Limitation of production or sales, with the exception of the fixing of: (i) the production of products in unilateral or reciprocal specialization agreements; (ii) production capacity and volume in co-production agreements; and (iii) sales targets in joint distribution agreements; or agreements limited to joint sales (as opposed to joint sales in the context of cooperation with joint production/specialisation, as described above) are considered to be restrictions of competition within the meaning of Article 101(1) and must therefore always be assessed in accordance with Article 101(3). This also applies if the agreement is not exclusive (i.e. if the parties can sell outside the cooperation), provided that it can be concluded that the agreement leads to overall price coordination.
The Commission notes that pricing (i.e. . B joint sales) can normally only be justified if it is essential for the integration of other marketing functions and this integration leads to significant efficiency gains. In the case of agreements between competitors, the RDR shall apply only if, at the time of conclusion of the agreement, the parties` combined market share is less than or equal to 25 %. A research and development agreement (“R&D”) is an agreement under which two or more parties agree to collaborate on research and development of products, technologies or processes. The agreement may include the sharing of R&D results and may also cover remunerated R&D. Rdber provides a safe haven for R&D agreements that meet certain criteria. TTBE also acknowledges that in order to license intellectual property rights, it may be necessary to impose certain restrictions on the parties` subsequent business activities. An example would be the limitation of the technological scope within which the licensee may exploit the technology if the licensor wishes to reserve certain fields for its own benefit (and if it was unable to do so, would not grant the licence at all). In summary, such ancillary agreements for the sale and purchase of products may be permitted unless they constitute the main subject matter of the agreement (which must be the intellectual property rights license), are directly related to the manufacture of contract products that constitute the license and do not contain any of the “hardcore restrictions” (see below).
If an anti-competitive agreement is not exempted (individually or automatically under a block exemption), it is unenforceable and may result in the usual competition penalties (including potentially high fines and the risk of claims for damages from third parties). If a horizontal agreement does not meet the criteria of a Block Exemption Regulation and therefore does not benefit from a safe harbour, this does not mean that there is a presumption of illegality of the agreement. The agreement requires an individual analysis with regard to the guidelines contained in the Commission`s horizontal guidelines. The analysis must take into account the reasons and impact of the agreement in practice. R&D agreements containing one of the following “hardcore restrictions” will not benefit from the safe harbour provided for in the RDBER: SBER provides a safe harbour for the following types of specialisation agreements: standardisation agreements are described by the Commission in the Guidelines as agreements which `have as their main objective the definition of technical or qualitative requirements, with which current or future products, production processes, services or methods can meet the requirements”. In other words, these are common industry standards designed and agreed by officially recognised standardisation bodies, associations or simply agreements between independent undertakings setting common requirements for services or products in cases where compatibility and interoperability with other products and systems are essential or minimum quality marks are required. [1] The BeR Regulation on Specialisation entered into force on 1 January 2011 and contains a two-year transitional regime for agreements which were in line with the previously applicable Block Exemption Regulation but which do not comply with the BeR Regulation on Specialisation. `horizontal cooperation` means agreements or arrangements between undertakings operating at the same level of the supply chain, i.e. actual (or potential) competitors, e.B. a joint R&D project between competing technology companies or a sales and marketing joint venture between competitors. .
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