Horizontal Agreements Block Exemption

22. september 2021 Slået fra Af Patrick

Article 101(1) of the Treaty on the Functioning of the European Union (`the Treaty`) prohibits agreements between undertakings which restrict competition, unless they generate efficiency gains in accordance with Article 101(3) of the Treaty. This occurs when they contribute to the improvement of the production or distribution of goods or services or to the promotion of technical or economic progress, while allowing consumers to benefit from an appropriate share of the benefits derived therefrom; they lay down only restrictions which are indispensable for the achievement of those objectives and do not eliminate competition in part of the product concerned. The prohibition laid down in Article 101(1) of the Treaty extends, inter alia, to agreements between actual or potential competitors (so-called `horizontal` agreements). In addition to the above-mentioned articles, these types of agreements and/or horizontal cooperation practices have been further dealt with in two Commission Regulations collectively referred to as `horizontal block exemption regulations`, namely: the legislation applicable to horizontal agreements. The Commission considers that some restrictions imposed by EI are restrictive. For such restrictions, it may be particularly difficult to assert that the exemption criteria apply. Any exchange of information aimed at restricting competition on the market shall be considered as an inconsistent restriction of competition. The new horizontal guidelines revised the existing guidelines on the applicability of Article 101 TFEU to cooperation agreements and provided a framework for the analysis of the most common forms of horizontal cooperation agreements. Although these guidelines are not binding on jurisdictions, they provide valuable insight into the relevant criteria to be taken into account when self-assessing horizontal agreements.

These include research and development (R&D) agreements, production contracts, purchasing agreements, marketing agreements, standardization agreements and information exchange agreements. Horizontal guidelines and FSRs do not provide sufficiently clear guidelines for certain types of horizontal cooperation, resulting in a lack of legal certainty. The guidelines should specifically address sustainability agreements, data sharing agreements, collective bargaining, joint purchasing, joint tendering and co-insurance agreements. In some of the applications received so far, stakeholders have focused on standard patents and FRAND negotiations within patent pools and standard development organizations, as well as joint purchasing agreements of retail alliances. . . .