The European Commission recently provided a reminder that cooperation agreements with competitors must be analysed carefully for compliance with competition law in the EU. The closer the arrangements are to the customer, the more significant the concerns will be.
The case, originally opened in December 2011 following a complaint, relates to agreements between Honeywell and DuPont concerning production arrangements and the development of production processes for a new refrigerant (R-1234yf) for use in car air-conditioning systems. R-1234yf is currently the only commercially available refrigerant which complies with EU environmental standards for air conditioning systems in motor vehicles. Honeywell and DuPont are the only two suppliers of the refrigerant to car manufacturers.
The EC announced on 21 October 2014 that it is concerned that the arrangements may have hindered competition on the market for R-1234yf, in particular by limiting the availability of the product on the market and also by limiting its technical development. Original concerns that Honeywell may have engaged in deceptive conduct during the evaluation of 1234yf (a type of “patent ambush”) have been dropped.
A key issue in the case, already raised by the parties, will be whether the EC’s allegations conflict with its own guidelines and case precedent concerning horizontal cooperation between competitors, particularly given the environmental aspects.