The new draft EU horizontal antitrust rules – A snapshot overview

On 1 March 2022, the European Commission (“EC”) published for consultation two draft revised horizontal block exemption regulations (“HBERs”) on research & development (“R&D”) and specialisation agreements, as well as draft revised horizontal cooperation guidelines (“Horizontal Guidelines”).

The EC’s stated aim is to make it easier for companies to cooperate in areas such as R&D and production, but also in activity such as sustainability initiatives. The EC is aware that competitor collaboration may be key to reaching green targets, and that the current lack of legal certainty may be deterring companies from introducing sustainability initiatives. The revised horizontal guidelines provide new guidance on sustainability agreements, information sharing, mobile infrastructure sharing agreements, and bidding consortia.

The EC is inviting views on the drafts by 26 April 2022. The new EC horizontal rules and guidelines will enter into force on 1 January 2023. The EC is also currently reviewing its vertical rules, with new rules due to enter into force on 1 June 2022.

Key revisions

Additional guidance on restrictions by object and by effect to capture the developments in the case law, although the lines remain blurred

Broader scope of the definition of “sustainability” that includes not just environmental initiatives, but also social objectives (e.g., labour and human rights)

Broad view of benefits that are relevant to the competitive analysis, including: (i) individual use value (e.g., improved product quality or variety); (ii) individual non-use value (where the consumers’ use experience with the product is not directly improved, but consumers value the impact of their sustainable consumption on others); and (iii) collective benefits (where, irrespective of the consumers’ individual appreciation of the product, objective benefits accrue to a larger group of which the consumer is part)

A “soft safe harbour” for sustainability standards. A sustainability standardisation agreement is unlikely to raise concerns where it secures transparency, open and non-discriminatory access, voluntary participation, freedom to adopt a higher standard and no exchange of commercially sensitive information. But the sustainability standard should not lead to a “significant” increase in price or “significant” reduction in choice

Agreements on the creation of a database containing suppliers’ sustainability credentials are permissible, provided that this does not entail requirements to purchase from, or sell to, specific companies

Guidance on the use of algorithms

Limited guidance on exchanges of information in the context of M&A and stemming from regulatory initiatives

Guidance on measures to limit/control how data is used and access to information

The Horizontal Guidelines do not deal with information exchange in the context of dual distribution. This is governed by the EC’s vertical block exemption regulation and accompanying guidelines. The EC has published for consultation a draft new section of its Vertical Guidelines, which contains proposed guidance on information exchange in dual distribution relationships.

Horizontal subcontracting agreements in general – and not only those with a view to expanding production – can benefit from the safe harbour of the Horizontal Guidelines

Clarification of the scenario of potential upstream harm to suppliers

Clarification of circumstances in which it is less likely that lower prices will be passed onto consumers

Further explanations on the assessment under Article 101 (3) of pass-on to consumers

Additional guidance on the main risks of output limitation

Additional guidance on the specific rules for commercialisation agreements in agricultural products

More elements for conducting the assessment of whether a proposed licensee fee is FRAND

Reform timetable

Publication of 5 expert studies on specific topics regarding the HBERs, joint purchasing and sustainability agreements, which are available on the EC’s dedicated webpage