The new draft Regulations and Guidelines on the application of EU competition law to agreements between competitors were published for consultation on 4 May 2010. The deadline for submissions to the Commission on the revised rules and guidelines is 25 June 2010. The two current block exemption Regulations, which exempt certain categories of research and development (R&D) agreements and specialisation agreements from the prohibition against anti-competitive restrictions, are due to expire on 31 December 2010. The European Commission proposes adopting new Regulations to replace them.
The draft R&D block exemption is not fundamentally different and, as now, would apply only where the parties’ combined market share is below 25%. The draft Regulation includes a new rule on disclosure of background intellectual property rights relevant for the exploitation of the results. In addition, it is made clear that restrictions on active sales to territories not exclusively allocated to one party are not exempted. The draft Specialisation exemption is also very similar to its predecessor. As in the current Regulation, the exemption is conditional on the parties’ having a combined market share of below 20%. It is worth noting that the new rules state that where the product concerned is an intermediary product, the automatic exemption applies only if the parties’ combined market shares in the “downstream market” (i.e. the market for the goods containing the intermediary product) is also below 20%. The definition of “potential competitor” is clarified in both draft Regulations.
The draft Guidelines, clarifying the Commission’s views on the way Article 101 TFEU applies to agreements between companies operating at the same level of the supply chain, are quite markedly different from the current Guidelines. In addition to taking a far more economic-based approach to the analysis of the likely impact on competition and introducing many more hypothetical examples, there are a number of other significant changes, notably:
- a new chapter concerning the exchange of information between companies which seeks to explain where information exchange is likely to be anti-competitive and where it may be positive for the market;
- an extensive revision of the standardisation chapter to clarify rules on standard setting and access to intellectual property rights on fair, reasonable and non-discriminatory terms;
- clarification of the application of the competition rules to agreements between joint ventures and their parent companies; and
- the removal of the chapter on environmental agreements.