State of play, main conclusions, outlook

Article 101(1) of the Treaty prohibits anti-competitive agreements between undertakings unless they present efficiencies and consumers enjoy a fair share of their benefits. Council Regulation (EEC) No 2821/71 empowers the Commission to apply Article 101(3) of the Treaty by regulation to certain categories of horizontal agreements, decisions and concerted practices for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty. The Commission used this empowerment and adopted two Block Exemption Regulations for horizontal co-operation agreements: Commission Regulation (EU) No 1217/2010 (for research and development agreements) and Commission Regulation (EU) No 1218/2010 (for specialisation agreements).

The two Block Exemption Regulations for horizontal co-operation agreements will expire on 31 December 2022.

The purpose of the evaluation concluded on 6 May 2021 was to evaluate how these regulations function and to inform the decision on whether the Commission should let the regulations lapse, prolong their duration or revise them.

Estimated savings and benefits

The purpose of the Horizontal Block Exemption Regulations is to exempt from the prohibition contained in Article 101(1) of the Treaty those research and development and specialisation agreements for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty. The Guidelines on horizontal cooperation agreements provide binding guidance on the Commission for the interpretation of the Horizontal Block Exemption Regulations and for the application of Article 101 of the Treaty to other horizontal agreements. Undertakings therefore rely on both the Regulations and the Guidelines to assess whether the horizontal cooperation agreements they enter into are compliant with Article 101 of the Treaty.

The regulations and guidelines aim to increase thelegal certainty for market players entering into horizontal cooperation agreements, in particular by creating a safe harbour for some categories of agreements, thereby allowing undertakings to assess their agreements more efficiently and to reduce compliance costs.

While during the evaluation, it was not possible to gather reliable quantitative evidence on the costs and benefits attributable to the HBERs and the Horizontal Guidelines, the evaluation established that the costs were proportionate to the benefits. Furthermore, the evidence gathered did not allow determining the evolution of the costs compared to the previous regulatory framework, even if there are indications that costs have decreased and that they would be higher in the absence of the HBERs. In particular, national competition authorities considered that costs would increase without the HBERs, because of the lack of safe harbours, the need to have national regulations or more guidance or intervention from the national competition authorities, which would be more difficult to provide.