Overview of Revised Horizontal Guidelines and Stakeholder Feedback
The content covers the revised Horizontal Guidelines by Annemarie ter Heegde, discussing exemptions for Research and Development agreements, Joint Production, Specialisation agreements, and more. It also outlines the evaluation phase timeline, including the Impact Assessment phase and Stakeholder feedback on horizontal cooperation agreements. Key proposals and necessary guidance for self-assessment in data sharing and information exchange are highlighted.
- Horizontal Guidelines
- Stakeholder Feedback
- Research and Development
- Information Exchange
- Impact Assessment
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Presentation Transcript
Info exchange in the revised Horizontal Guidelines GCLC 9 December 2022 Annemarie ter Heegde DG COMP
Quick reminder: HBERs and Horizontal Guidelines R&D Block Exemption Regulation Research and development agreements exempted from Article 101(1)TFEU if: Conditions for exemption are fulfilled (incl access to pre- existing know-how/full access to results) Information exchange Market share threshold of 25% not exceeded R&D Joint Purchasing Agreement does not contain hard-core restrictions or excluded restrictions Horizontal Guidelines Commercialisation Specialisation Joint Production Specialisation Block Exemption Regulation Specialisation agreements exempted from Article 101(1) TFEU if: Market share threshold of 20% not exceeded Standardisation Standard terms Agreement does not contain hard-core restrictions 2
Evaluation phase Timeline Impact Assessment phase Public & NCAs Consultation 10 Today 12 weeks consultation Evaluation Support study Launched on March 2020 SWD Published May 2021 Evaluation Support study Published May 2021 06 04 07 Targeted NCAs consultation Workshop 14 05 pre-market R&D agreements Workshops Q3 2021 Public Consultation Launched April 2020 11 Draft HBERs & HGL 12 03 Published for comments 1 March 2022 14 weeks consultation Published November 2019 Roadmap 4 weeks for comments Published September 2019 Launch IA phase May 2021 08 02 Impact Assessment report Adoption Prolongation HBERs Adoption Revised HBERs & HGL 13 15 16 Inception IA 4 weeks comments Published 7 June 2021 09 Review launch Launched July 2019 01 2023 2019 2020 2021 2022 3
Stakeholder feedback on current chapter Most common type of horizontal cooperation agreement Chapter offers too little guidance for self-assessment/lacking legal certainty More guidance needed on: collusion and foreclosure risks in data pools/data sharing. horizontal aspects of information exchange in dual distribution context permitted forms of information sharing Mixed stakeholders views on by object infringements: o NCAs/Commission: wider by object box, including current prices and quantities o Companies/law firms: while real-time data has become more important, by object box is too large 4
Key proposals: information exchange Guidance on all types of information exchange, incl. different types of data sharing Coherent approach, as risks of collusion and foreclosure are the same Updated to include most recent case law on information exchange Improved structure of the chapter: assessment under Article 101(1) dependent on: o Nature of the information exchanged o The characteristics of the exchange o The market characteristics 5
Key proposals: information exchange New guidance: o Information exchange in the context of other types of horizontal cooperation, regulatory requirements, M&A transactions o Indirect information exchange, incl. hub and spoke scenarios o The measures put in place to limit and/or control how data is used o Access to information and data collected (foreclosure risk) By object box aligned with case law o Not limited to future prices and quantities 6
Stakeholder feedback on draft revised chapter In general: More examples/guidance requested Specifically regarding: o Info exchange in context of M&A, use of clean teams o Use of algorithms o Age and level of aggregation of information o Requirements for public distancing o Regulatory requirements, ex. DMA, Data Act, Too negative on the efficiencies of data sharing 7
Info exchange: ongoing reflections Exchanges outside traditional cartel scenarios o Unilateral disclosures and indirect exchanges o Information in the public domain: no safe harbour Exchanges not directly related to prices Costs, capacity, production, market shares, R&D, etc. 8
Thank you Contact: COMP-HBERS-REVIEW@ec.europa.eu 9
