Block Exemption Regulation Horizontal Agreements

The new rules on cooperation agreements have made it possible to revise and clarify the R&D (R&D) block exemption regulations, the BeR for specialisation and the horizontal guidelines. The regulations exempt from the competition rules certain R&D, specialisation and production agreements, which are probably not immune to competition concerns, and, together with the horizontal guidelines, draw the attention of companies to ways of cooperating without infringing anti-cartel rules by providing self-assessment factors. Two relevant examples of digital infrastructure agreements would be: (i) network sharing agreements, which have become a usual and efficient way for telecoms operators to provide networks across Europe, and which will be particularly relevant for the introduction of 5G in the future; and (ii) agreements on data exchange and data sharing: as data underlying the digital economy, they will become a widespread mode of cooperation that will facilitate innovative digital services in Europe. Today, the positions of competition authorities and regulators on network sharing agreements are likely to widen. Regulators encourage or impose network agreements within the regulatory framework, while the position of competition authorities varies from country to country and is unclear. ETNO therefore believes that an update of HGL is necessary. The update should take into account, under certain conditions (as defined above), that initiatives to promote innovative and interoperable products and services with the aim of supporting the EU`s competitiveness worldwide are pro-competitive and do not restrict competition. These agreements may be integrated or redefined in types of horizontal cooperation agreements already identified. Horizontal agreements must be assessed in their economic context. Digital markets are changing rapidly and are global. Telecommunications companies compete in these markets and must have the appropriate conditions to cooperate increasingly on sectoral initiatives of an appropriate scale. For example, the guidelines consider a horizontal agreement to be economically beneficial when it is a means of sharing risks, achieving cost savings, increasing investment, pooling know-how, improving product quality and diversity, and launching innovation more quickly. On the other hand, horizontal cooperation can create competition problems if it has negative repercussions on the market in terms of price, production, innovation or product diversity and quality.

Although such cooperation agreements are in principle considered anti-competitive and therefore prohibited, they may, in accordance with Art. 101(3) of the Treaty, if they fulfil the following four cumulative conditions: with a view to a possible new block exemption regulation, another important general aspect to be taken into account, when assessing these horizontal cooperation agreements in the telecommunications sector, is that the market share approach normally used to define the scope of the Block Exemption Regulations (“BER”) is consistent with the ext is not suitable for the digital world. 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. . . .

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