European Commission – Adoption of the Revised Horizontal Block Exemption Regulations and Horizontal Guidelines

On 1 June 2023, the European Commission adopted the revised block exemption regulations on research and development (R&D) and specialisation agreements, together with the revised horizontal guidelines. These rules shall provide undertakings with legal certainty when they cooperate with #competitors.

According to well established economics, horizontal cooperation often does not restrict competition, although certain parameters of competition (at some instances even prices and volumes) are coordinated between competitors in the context of such cooperation. On the contrary, they regularly lead to significant efficiency gains that could not be achieved by a single company. Such horizontal collaborations include, for instance, bidding consortia, R&D cooperation, standardisation, information exchange such as benchmarks, purchasing pools, and sustainability guidelines.

The main changes of the revised rules include greater flexibility concerning specialisation and standardisation agreements, increased emphasis of innovation competition in the context of R&D cooperation, new sections in the guidelines on mobile telecommunications infrastructure sharing agreements and bidding consortia as well as important clarifications concerning information exchange and purchasing agreements (namely regarding on top purchasing agreements and joint negotiating tactics) and a new chapter in the guidelines on sustainability agreements. The new block exemptions will enter into force on 1 July 2023, the horizontal guidelines following their publication in the Official Journal of the European Union (EU).

In Switzerland, there is no comparable set of rules. Combined with the formalistic approach taken by the Swiss courts and competition authorities following the Elmex toothpaste (Gaba) ruling of the Swiss Federal Supreme Court, this notoriously creates a major legal uncertainty for companies operating in Switzerland (overcompliance and Swissfinish). In the interest of legal certainty and the protection of competition, it would be welcome if the Swiss competition authorities and courts were effectively to be guided by EU rules when applying Swiss competition law when it comes to horizontal cooperation. A corresponding clarification as with regard to vertical agreements would also be important.

More information about the horizontal block exemption regulations and horizontal guidelines as well as the relevant legal texts can be found here.