Commission Guidelines On Horizontal Cooperation Agreements (`hgl`)

08 Apr

Most of the R and R D are not covered by Article 101, paragraph 1. First, many research and development cooperation agreements can say this at a fairly early stage, far from exploiting the possible outcomes. If an agreement does not have a category exemption, it does not necessarily mean that it is illegal. The agreement may continue to benefit from an “individual” exemption under Article 101, paragraph 3 of the EU Treaty (“TFUE”), which provides for a four-point test (see summary here). It is up to the company and its advisors to decide whether the test is completed when challenged by a court or regulator. The HGL serves as a tool to help them in this task. The GLT also contains other guidelines for the application of horizontal class exemptions, which are currently under further review. To achieve these efficiencies in standardization agreements, the information necessary to implement the standard must be made available to those who wish to enter the market (126). These guidelines apply to all forms of common production agreements and horizontal subcontracts. Subject to certain conditions, joint production agreements and unilateral and reciprocal specialisation agreements may benefit from the category exemption regulation relating to specialisation.

If participation in standardization is full and transparent and the procedure for adopting the standard in question is transparent, standardization agreements that do not contain a compliance obligation (111) and allow access to the standard on fair, proportionate and non-discriminatory conditions do not, as a general rule, limit competition within the meaning of Section 101 paragraph 1. If research and development is aimed at developing a product that generates completely new demand, market shares cannot be calculated on the basis of sales. Only an analysis of the impact of the agreement on competition in terms of innovation is possible. As a result, the E.B. class exemption regulation treats these agreements as agreements between non-competitors and exempts them, regardless of their market share, for the duration of the R and E. D common and an additional period of seven years after the first marketing of the product (84). However, the benefit of the category exemption may be removed if the agreement excludes effective competition in the area of innovation. At the end of these seven years, market shares can be calculated on the basis of the value of sales and the market share threshold is 25% (86). The exchange of information can only be considered under Article 101 if it creates or participates in an agreement, a concerted practice or a decision of a business association. The existence of an agreement, a concerted practice or a decision of a business association does not prejudge whether the agreement, concerted practice or decision of a business association leads to a restriction of competition within the meaning of Article 101, paragraph 1.

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