On 6 November 2019, the European Commission launched a public consultation on the Horizontal Block Exemption Regulations ("HBERs") – the Research & Development Block Exemption Regulation ("R&D BER") and the Specialisation Block Exemption Regulation ("Specialisation BER"), and the accompanying Guidelines on horizontal cooperation agreements. The HBERs exempt agreements between competitors (so-called horizontal agreements) from the prohibition of Article 101 (1) TFEU which, it can be assumed, almost certainly satisfy the conditions of Article 101(3) TFEU.
In view of the expiration of the HBERs on 31 December 2022, the Commission is seeking feedback from public stakeholders the operation of the HBERs in order to evaluate their effectiveness, efficiency, relevance, coherence and EU added value.
In Commissioner Vestager's words, the ultimate aim of the review is to make "clear when rival companies can work together to produce better results for consumers." This clarification is particularly needed in light of the growth in digitalisation and the emergence of new market players, such as online platforms, acting as both marketplaces and retailers.
In some of the submissions received to date, stakeholders have focused on standard essential patents and FRAND negotiations within patent pools and standard development organisations and on joint purchasing agreements by retail alliances. Stakeholders have also requested clarification on the information exchange rules between competitors.
The public consultation will be open until 12 February 2020. Feedback will be taken into account for further development and fine tuning of the initiative. In principle, feedback will be published.
Link to the public consultation (here).