New block exemptions for R&D and specialisation agreements in force since July
The European Commission has adopted revised horizontal block exemption regulations for research and development (R&D) and specialisation agreements, including related interpretation guidelines. The aim is not only to remove some ambiguities but also to extend the applicability of these safe harbours.
The Treaty on the Functioning of the EU (TFEU) prohibits the conclusion of agreements between undertakings which could affect trade between member states and could have the effect of preventing, restricting or distorting competition in the internal market. One of the exemptions from this prohibition is the block exemption for research and development (R&D) and specialisation agreements.
In particular, the new horizontal block exemption regulations for research and development (R&D) and specialisation agreements, which replace their predecessors from 2011, aim to increase the clarity of the current rules to reflect the latest decision-making practice so that companies can better assess whether their agreements could enjoy the safe harbour benefits. At the same time, the regulations bring other significant changes which:
- clarify the method of calculating the relevant market share (e.g., where sales figures for the previous calendar year are not representative, data for the three previous calendar years should be used)
- simplify the standstill period during which safe harbour benefits can be used even if the contracting parties' respective market shares rise above the relevant market share threshold
- extend the possibility of applying the block exemption to more types of specialisation agreements
- provide for a ‘soft safe harbour’ for sustainability standardisation agreements that meet specified conditions
- lay down detailed rules on information exchange agreements, sustainability agreements, marketing agreements (including consortia in procurement procedures), mobile telecommunications infrastructure sharing agreements or joint ventures
- offer practical recommendations to companies to prevent infringements of competition rules (e.g., use of clean teams in the exchange of information)
- extend the power of the Commission and national competition authorities to withdraw the block exemption in individual cases (e.g., where the agreement would significantly restrict competition in innovation).
The regulations entered into effect on 1 July 2023. Although agreements meeting the conditions of the existing regulations will be able to use the existing exemptions and the new regulations will apply to them only from 1 July 2025, we recommend that you reflect these new rules as soon as possible in your contractual documentation, internal regulations, and compliance programmes.