Table of contents 1.Introduction 1.1. Purpose of the evaluation of the HBERs and Horizontal Guidelines 1.2. Scope of the evaluation of the HBERs and the Horizontal Guidelines 2.Background to the intervention 2.1. Overview of the competition policy framework 2.2. Description of the intervention 2.2.1. The R&D BER 2.2.2. The Specialisation BER 2.2.3. The Horizontal Guidelines 2.3. Intervention logic and objectives 2.3.1. General objective 2.3.2. Specific objectives 2.4. Evaluation baseline 3.Implementation / state of play 3.1. Description of the current situation 3.1.1. Incidence of horizontal cooperation agreements 3.1.2. Use of the HBERs and Horizontal Guidelines 3.1.3. Major trends and developments since 2011

3.2. The Commission’s enforcement action regarding horizontal cooperation agreements 3.3. The NCAs’ enforcement and policy action regarding horizontal cooperation agreements 3.3.1. Enforcement practice by the NCAs 3.3.2. National guidelines by the NCAs 4.Methodology 4.1. Data gathering, methodology and analysis 4.2. Additional evidence gathered through other Commission initiatives 4.3. Processing and triangulating of the evidence collected 4.4. Limitations of the analysis 4.4.1. Evidence on HBERs related costs and benefits 4.4.2. Representativeness of stakeholder feedback 4.4.3. Limited evidence about consumer views 5.Analysis and answers to the evaluation questions 5.1. Effectiveness 5.1.1. The evaluation questions 5.1.2. The main findings regarding the effectiveness of the intervention 5.2. Efficiency 5.2.1. The evaluation questions 5.2.2. The main findings regarding the efficiency of the intervention 5.3. Relevance

5.3.1. The evaluation questions 5.3.2. The main findings regarding the relevance of the intervention 5.4. Coherence 5.4.1. The evaluation questions 5.4.2. The main findings regarding the coherence of the intervention 5.5. EU added value 5.5.1. The evaluation question 5.5.2. The main findings regarding the EU added value of the intervention 6.Conclusions Annex 1: Procedural information Annex 2: Stakeholder consultation Annex 3: Methods and analytical models Annex 4: Overview of issues identified during the evaluation process



1.Introduction Article 101(1) of the Treaty on the Functioning of the European Union (‘the Treaty’) prohibits agreements between undertakings that restrict competition, unless they contribute to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, in accordance with Article 101(3) of the Treaty. Horizontal cooperation agreements are agreements entered into between companies operating at the same level in the market. Horizontal cooperation relates in most cases to cooperation between actual or potential competitors in areas such as R&D, production, purchasing, commercialisation or standardisation. It can also involve information exchange, either as a self-standing agreement or in the context of another type of horizontal cooperation agreement. Horizontal cooperation agreements may give rise to substantial efficiencies, in particular if the companies involved combine complementary activities, skills or assets. For example, a standardisation agreement on an interoperability standard may limit competition between technologies but might also enable the creation of a new market and reduce the lead-time for an innovative product to reach the consumer. An R&D agreement may lead to fewer companies carrying out research in, for example, a particular type of medicine. It might however also lead to efficiencies where the combination of efforts leads to a quicker and better solution for the identified problem or enable a more costly or risky project than a party would have carried out on its own.

Horizontal cooperation agreements can however also lead to serious competition problems, in particular where they increase the market power of the parties to an extent that enables them to increase prices, limit output or variety or reduce innovation efforts. Cartels are never efficiency enhancing and are therefore always illegal. They are not covered by the block exemption regulations and guidelines which are the subject of this evaluation. Under Regulation (EEC) 2821/71 (‘Empowerment Regulation of 1971’), the Commission is empowered by the Council to adopt block exemption regulations, which define certain categories of agreements that generally fulfil the conditions of exemption under Article 101(3) of the Treaty. On this basis, the Commission has adopted two block exemption regulations concerning horizontal cooperation agreements that are currently still in force: Commission Regulation (EU) No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements (‘R&D BER’) and Commission Regulation (EU) No 1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements (‘Specialisation BER’). These two block exemption regulations will be referred to together as the ‘Horizontal Block Exemption Regulations’ or the ‘HBERs’. The purpose of the HBERs is to define those categories of horizontal cooperation agreements for which it can be assumed with sufficient certainty that they fulfil the conditions of Article 101(3) of the Treaty and to exempt those from the prohibition contained in Article 101(1) of the Treaty. The HBERs entered into force on 1 January 2011 and will expire on 31 December 2022. The HBERs are accompanied by guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements (‘Horizontal Guidelines’). The Horizontal Guidelines provide guidance on the assessment of different types of horizontal cooperation agreements under the HBERs and also more generally under Article 101(1) and Article 101(3) of the Treaty. Horizontal cooperation agreements which do not qualify for an exemption under the HBERs may nonetheless satisfy the conditions of the exemption provided by Article 101(3) of the Treaty. The Horizontal Guidelines are without prejudice to the case law of the Union courts concerning the application of Article 101 of the Treaty to horizontal cooperation agreements. The following sections set out the purpose of the evaluation (see section 1.1 below), as well as its substantive and geographic scope (see section 1.2 below). 1.1.Purpose of the evaluation of the HBERs and Horizontal Guidelines The purpose of the evaluation is to gather evidence on the functioning of the HBERs, together with the Horizontal Guidelines, which will serve as a basis for the Commission to decide whether it should let the HBERs and Horizontal Guidelines lapse, renew or revise them. As required by the Commission’s Better Regulation Guidelines, the evaluation examines whether the objectives of the HBERs and the Horizontal Guidelines were met during the period of their application (effectiveness) and continue to be appropriate (relevance) and whether the HBERs and the Horizontal Guidelines, taking account of the costs and benefits associated with their application, were efficient in achieving their objectives (efficiency). It also considers whether the HBERs and the Horizontal Guidelines, as legislation at Union level, provided added value (EU added value) and are consistent with other Commission documents providing guidance on the application of Article 101 of the Treaty and related legislation with relevance for horizontal cooperation agreements (coherence). The impact of the COVID-19 outbreak is not dealt with extensively in this Staff Working Document, given that these developments are very recent and the evidence gathered in the evaluation largely preceded the outbreak. This Staff Working Document reflects the findings and views of the Commission’s staff. It does not prejudge the final nature or content of any act or acts that may be prepared by the Commission as a follow-up to this evaluation. 1.2.Scope of the evaluation of the HBERs and the Horizontal Guidelines The substantive scope of the evaluation includes the HBERs and the Horizontal Guidelines, in their entirety. Insofar as the Horizontal Guidelines refer to the provisions of the HBERs and inform their application and interpretation, the evaluation of the HBERs would not be complete if it did not include the Horizontal Guidelines. The geographic scope of the evaluation extends to all Member States. Article 101(1) of the Treaty has direct applicability in all Member States by virtue of the case law of the Union courts. Regulation (EC) No 1/2003 created a system of parallel competences in which the competition authorities and the courts of the Member States, alongside the Commission, have the power to apply not only Article 101(1) of the Treaty, but also Article 101(3) of the Treaty. When assessing the compatibility of horizontal cooperation agreements that may affect trade between Member States within the meaning of Article 101 of the Treaty, national competition authorities (‘NCAs’) and national courts are bound by the directly applicable provisions of the HBERs. The Horizontal Guidelines, which are binding on the Commission, do not bind NCAs or national courts, but they typically take them into account when assessing the compatibility of horizontal cooperation agreements with Article 101 of the Treaty. Against this background, the evaluation of the HBERs and the Horizontal Guidelines includes not only the decisional practice of the Commission but also that of the NCAs, as well as the relevant jurisprudence of national courts. In view of the Commission’s obligation to informally seek advice from experts of the EFTA States for the elaboration of new legislative proposals, the Commission has informed the EFTA States of the evaluation of the HBERs and the Horizontal Guidelines in order to provide them with an early opportunity to share their experience in this regard. 2.Background to the intervention

The following sections provide an overview of the EU competition policy framework for horizontal cooperation agreements (see section 2.1 below), a description of the HBERs and the Horizontal Guidelines (see section 2.2 below), a presentation of the intervention logic (see section 2.3 below) and a presentation of the impact assessment baseline for the HBERs and the Horizontal Guidelines (see section 2.4 below). 2.1.Overview of the competition policy framework The purpose of the EU competition rules enshrined in the Treaty (notably Articles 101 and 102 of the Treaty) and related secondary EU law (such as Commission regulations) and soft law (such as Commission notices and guidelines) is to prevent competition from being distorted to the detriment of consumers, thereby contributing to achieving an integrated single market. Article 101(1) of the Treaty prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices, which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition. As an exception to this rule, Article 101(3) of the Treaty sets out that the prohibition contained in Article 101(1) of the Treaty may be declared inapplicable to agreements that are on balance efficiency-enhancing, provided that such agreements fulfil four cumulative conditions. They have to (i) contribute to improving the production or distribution of goods or to promoting technical or economic progress, (ii) while allowing consumers a fair share of the resulting benefits. Moreover, they (iii) must not impose restrictions that are not indispensable to the attainment of the aforementioned objectives, and (iv) must not afford the undertakings the possibility of eliminating competition in respect of a substantial part of the products concerned. In light of the above, the assessment of agreements under Article 101 of the Treaty consists of two parts. The first step is to assess (in the context of Article 101(1) of the Treaty) whether an agreement between undertakings, which is capable of affecting trade between Member States, restricts competition. This is the case if it reveals a sufficient degree of harm to competition so that there is no need to examine its actual or potential effects (‘restriction by object’) or, absent such obvious harm to competition, if it results in actual or potential anti-competitive effects (‘restriction by effect’). The second step, which only becomes relevant when an agreement is found to restrict competition pursuant to Article 101(1) of the Treaty, is to determine (in the context of Article 101(3) of the Treaty) the procompetitive benefits produced by the agreement and to assess whether these procompetitive effects outweigh the anti-competitive effects resulting from the agreement. The creation of a single market required that companies adapt to the conditions of the enlarged market and cooperation between companies was seen as a suitable means of achieving this. The Council thus adopted the Empowerment Regulation of 1971 to enable the Commission to declare by way of regulation that the provisions of Article 101(1) of the Treaty do not apply to certain types of horizontal cooperation agreements. This possibility covers horizontal cooperation agreements which enable companies to work more rationally and adapt their productivity and competitiveness to the enlarged market in order to make it easier for companies to cooperate in ways which are economically desirable and without adverse effect from the point of view of competition policy. The Commission has made use of this empowerment by adopting various block exemption regulations concerning R&D and specialisation agreements since 1971. 2.2.Description of the intervention 2.2.1.The R&D BER The R&D BER builds on the provisions of its predecessors, Regulation (EEC) No 418/85 and Regulation (EC) No 2659/2000. The R&D BER aims at facilitating innovation. The introduction of new processes and products on the market stimulates competition within the single market and helps to strengthen the ability of European industry to compete internationally. Research and development plays an essential role as it promotes and maintains dynamic competition, characterised by initiation and imitation and in doing so assures economic growth. The R&D BER exempts certain types of R&D agreements and the joint exploitation of their results. It covers R&D carried out jointly as well as ‘paid-for research’ agreements, in which one party finances the R&D activities carried out by the other party. The exemption provided by the R&D BER applies irrespective of market shares for the duration of the research and development if the parties are not competitors and if they do not jointly exploit the results. If the parties jointly exploit the results, then the exemption applies for seven years from the time the products or technologies are first put on the market. After the seven years, the exemption continues to apply subject to a market share threshold of 25%. If the parties are competitors at the time the R&D agreement is entered into, the exemption applies for the above-mentioned periods only if the combined market share of the parties to the agreement does not exceed 25% on the relevant product and technology markets. The R&D BER distinguishes between agreements involving mere joint R&D and those that foresee a combination of joint R&D and joint exploitation by the parties. It clarifies that the joint exploitation of R&D results regarding products (i.e. by way of joint production and/or joint distribution) and regarding technologies (i.e. by way of joint licensing) are treated in the same way. The R&D BER contains a number of conditions for exemption. All parties must have full access to the final results of the joint or ‘paid-for’ research and development, including any resulting intellectual property rights and know how. The R&D BER foresees certain possibilities in which such access rights can be limited. The R&D BER also contains a disclosure obligation, requiring that the parties to an R&D agreement have to disclose their existing and pending intellectual property rights relevant for the exploitation of the results by the other parties to the R&D agreement. This is intended to ensure that one of the parties cannot unduly impair the exploitation of the results by other parties to the agreement, thereby depriving customers and consumers of the benefits of joint R&D. The R&D BER contains a list of so-called hardcore restrictions, which sets out provisions which are under not allowed to appear in R&D agreements that want to benefit from exemption. The list includes certain limitations of output or sales, price fixing and certain territorial restrictions. 2.2.2.The Specialisation BER The Specialisation BER builds on the provisions of its predecessors: Regulation (EEC) No 2779/72; Regulation (EEC) No 3604/82; Regulation (EEC) No 417/85; and Regulation (EC) No. 2658/2000.

The adoption of these regulations is based on the consideration that specialisation agreements generally contribute to improving the production process and that they are particularly suited to strengthen the competitive position of small- and medium-sized firms. The favourable economic effects of specialisation lie in the achievement of economies of scale or, in a wider sense, in rationalization measures which enable firms to cut costs by concentrating operations. Such measures should lead, in conditions of effective competition, to lower prices and thus benefit the consumer. The Specialisation BER applies to unilateral and reciprocal specialisation agreements and joint production agreements. A unilateral specialisation agreement is a form of outsourcing whereby one party agrees to fully or partially cease manufacturing certain products and to purchase them from another party who agrees to produce and supply them. In a reciprocal specialisation agreement, parties mutually bind themselves to fully or partially cease from producing certain, different, products and to purchase these from another party which in turn takes on the obligation to produce and supply them. In a joint production agreement, two or more parties agree to produce certain products jointly. The exemption applies in case the combined market share of the parties does not exceed 20% on any of the relevant markets. Where the products concerned by a specialisation or joint production agreement are intermediary products which one or more of the parties use captively for the production of certain downstream products which they also sell, the exemption is also conditional upon the market share downstream not exceeding 20%. Similarly to the R&D BER, the Specialisation BER also contains a list of hard-core restrictions. These refer to price fixing, certain output or sales limitations and the allocation of markets and customers. 2.2.3.The Horizontal Guidelines The Horizontal Guidelines are to a large extent a continuation of rules provided in the 2000 Horizontal Guidelines. They were, however, updated and adapted in order to address the issues identified during the 2008-2009 review process. The Horizontal Guidelines complement the R&D and Specialisation BERs by providing guidance on the interpretation of the provisions in the BER and by addressing R&D and specialisation agreements not covered by these regulations as well as information exchange, joint purchasing, commercialisation and standardisation agreements. The Horizontal Guidelines set out the basic principles for the assessment of such horizontal cooperation agreements under Article 101 of the Treaty. They are intended to provide better guidance to market participants, helping them to self-assess whether or not an agreement restricts competition and, if so, whether it would qualify for an exemption. They further clarify that cooperation has to be assessed in its economic context taking into account both the nature of the agreement and the parties’ combined market power, which determine — together with other structural factors — the capability of the horizontal cooperation to reduce overall competition to a significant extent. The Horizontal Guidelines explain that there are some instances where the nature of the cooperation indicates from the outset that it is caught by Article 101(1) of the Treaty. This concerns primarily agreements that restrict competition by means of price fixing, output limitation or sharing of markets, customers or sources of supply (hardcore restrictions). On the other hand, the Horizontal Guidelines provide that there are also some horizontal cooperation agreements regarding which it can be said from the outset that Article 101(1) of the Treaty does not generally apply. These include agreements between non-competitors, agreements between competing companies that cannot independently carry out the project or activity covered by the cooperation, or cooperation concerning an activity which does not influence the relevant parameters of competition. These horizontal cooperation agreements would normally only come under Article 101(1) of the Treaty if they involve firms with significant market power and are likely to cause foreclosure problems vis-à-vis third parties. All other agreements need to be examined in the light of each of the two criteria (nature of the agreement and market power and market structure) in order to decide whether they fall under Article 101(1) of the Treaty. In the absence of hardcore restrictions and below a certain level of market power, defined in terms of market share, the Horizontal Guidelines provide so called ‘safe harbours’ for purchasing agreements and commercialisation agreements. Similar to coverage by a block exemption regulation, once inside these safe harbours, economic operators do not normally have to assess the impact of their agreements on the market. In the case of purchasing agreements, while recognising that there is no absolute threshold which indicates that buying cooperation creates some degree of market power and thus falls under Article 101(1) of the Treaty, the Horizontal Guidelines provide that in most cases it is unlikely that such market power exists if the parties to the agreement have a combined market share of less than 15% on the purchasing market(s) as well as a combined market share of less than 15% on the selling market(s). Where an agreement below these market share thresholds falls under Article 101(1) of the Treaty, the Horizontal Guidelines state that it is likely to fulfil the conditions of Article 101(3) of the Treaty. In the case of commercialisation agreements which do not involve the fixing of prices, the Horizontal Guidelines provide that, in most cases, it is unlikely that a sufficient degree of market power exists if the parties to the agreement have a combined market share of less than 15%. Where an agreement below this level of market share falls under Article 101(1) of the Treaty, the Horizontal Guidelines state that it is likely to fulfil the conditions of Article 101(3) of the Treaty. Concerning the chapter on standardisation agreements, the Horizontal Guidelines aim at ensuring that standards are set in such a way that the specific benefits of standard-setting are realised and passed on to European consumers and businesses. At the same time, the Horizontal Guidelines aim to avoid possible negative effects, such as reduced price competition, foreclosure of innovative technologies and exclusion or discrimination resulting from preventing effective access to a standard. The standardisation chapter gives guidance on how to ensure that the process of selecting industry standards is competitive and that, once the standard is adopted, access is given on fair, reasonable and non-discriminatory (‘FRAND’) terms to interested users. To this end, the standardisation chapter sets out the criteria under which standardisation agreements would normally fall outside the prohibition of Article 101 of the Treaty (‘safe harbour’). Moreover, the chapter gives detailed guidance on standardisation agreements that do not fulfil the safe harbour criteria and clarifies that there is no presumption of illegality outside the safe harbour. The chapter also clarifies that standard-setting organisations can use unilateral disclosure provisions to ensure that the organisation and the industry would have an informed choice not only on quality but also on price when selecting which technology should be included in the standard. The chapter further contains guidance and examples on standard terms. With regard to information exchange, the Horizontal Guidelines give guidance on how to assess the compatibility of information exchanges with EU competition law. The chapter on information exchange contains a set of principles and criteria to assess whether an information exchange is likely to be considered as having as its object a restriction of competition (e.g. when it concerns individualised information on intended future prices or quantities). It also provides guidance for the assessment of the restrictive effects and efficiencies of information exchanges that do not aim at restricting competition (e.g. for statistical or benchmarking purposes). The Horizontal Guidelines do not contain a separate chapter on environmental agreements which was still present in the 2000 Horizontal Guidelines. According to the 2008-2009 review process, standard-setting in the environment sector – which is what the chapter dealt with – was more appropriately dealt with in the standardisation chapter. Other aspects of environmental agreements are to be assessed under the relevant chapters of the Horizontal Guidelines, be it on R&D, production or commercialisation agreements. 2.3. Intervention logic and objectives As explained in section 1.2 above, this evaluation looks at the functioning of the R&D and Specialisation BERs, together with the Horizontal Guidelines, as a whole. Therefore, the intervention logic (summarised in Figure 1 below) refers to the R&D and Specialisation BERs in their entirety, together with the Horizontal Guidelines (i.e. the intervention), and not only to the specific provisions that were changed when the revised framework was introduced in 2010. 2.3.1.General objective The general objective of the intervention is to make it easier for companies to cooperate in ways which are economically desirable and without adverse effects from the point of view of competition policy.

2.3.2.Specific objectives The intervention also has specific objectives, which are to ensure an effective protection of competition and to provide adequate legal certainty for companies. Finally, the intervention aims at simplifying administrative supervision by providing a framework for the Commission, NCAs and national courts for the assessment of horizontal cooperation agreements. The objectives of the R&D and Specialisation BERs, together with the Horizontal Guidelines, are better understood in the context of the wider legal framework for applying Article 101 of the Treaty. Regulation (EC) No 1/2003 abolished the notification of agreements to the Commission as established by the previous Council Regulation (EEC) No 17/62. Companies therefore can no longer notify their agreements to the Commission in order to benefit from immunity from fines. They have to self-assess the compliance of their agreements with Article 101 of the Treaty. In order to do this, companies can rely on the existing case law of the Union courts, as well as on the enforcement practice of the Commission and the NCAs. However, the assessments in such judgments and decisions are case-specific and cannot always be directly applied to other markets and different practices. Consequently, irrespective of their precedent value, they provide a limited degree of legal certainty to businesses. In the absence of broader guidance drafted in more general terms, self-assessing agreements can create a significant burden, especially for SMEs, which may lack the necessary resources and/or legal expertise. There was therefore a need to provide greater legal certainty and more guidance for companies that enter into horizontal cooperation agreements to assist them with their self-assessment. This was also in line with Article 103(2)(b) of the Treaty, which provides that the Council, in laying down rules for the application of Article 101(3) of the Treaty, should aim to simplify administration to the greatest possible extent. Regulation (EC) No 1/2003 also decentralised the application of Article 101(3) of the Treaty by empowering NCAs and national courts, alongside the Commission, to apply Article 101(3) of the Treaty, which in the past was a prerogative of the Commission only. This decentralised enforcement system created a need to provide a common framework of assessment for the NCAs (and national courts), in order to foster a consistent application of Article 101 and ensure that companies operating across the EU could benefit from a level playing field. Figure 1 – Intervention logic for the HBERs and the Horizontal Guidelines 2.4.Evaluation baseline As explained in Section 2, the HBERs and the Horizontal Guidelines were preceded by a number of earlier versions of HBERs and Horizontal Guidelines. For the past 20 years, stakeholders have therefore been able to rely on Commission guidance in the self-assessment of their horizontal cooperation agreements. The Commission services consider that a situation without any form of guidance assisting companies in their self-assessment is not a sound, or desired, policy option. As main point of comparison for the evaluation, the Commission services have therefore taken the hypothetical situation of not having the R&D and Specialisation BERs in place, but only the Horizontal Guidelines. As the Horizontal Guidelines contain both interpretations of the provisions in the HBERs and self-standing guidance, the hypothetical situation would concern Horizontal Guidelines without reference to the HBERs but with the current market share thresholds – where these are now also provided – and the self-standing guidance. The evaluation thus looks at the functioning of the R&D and Specialisation BERs as compared to a situation in which the assessment of whether horizontal cooperation agreements comply with Article 101 of the Treaty would have to be done only in light of the Horizontal Guidelines and other Commission guidance, relevant case law at EU and national level, as well as the enforcement practice of the Commission and the NCAs. For the efficiency analysis, the evaluation in addition compares the current situation with the situation before the intervention (i.e. when the 2000 R&D and Specialisation BERs and the 2000 Horizontal Guidelines were in place). This allowed stakeholders to determine whether the current rules have increased their costs or resulted in added benefits in comparison to the previous situation. 3.Implementation / state of play 3.1.Description of the current situation The HBERs and the Horizontal Guidelines are measures assisting in the enforcement of and compliance with Article 101 of the Treaty. The intervention forms a common framework of assessment of horizontal cooperation agreements for companies, the Commission, NCAs and national courts, in order to ensure that companies operating across the EU could benefit from a level playing field. 3.1.1.Incidence of horizontal cooperation agreements The incidence of horizontal cooperation agreements in the last ten years was assessed based on the evidence gathered during the evaluation. The most relevant findings derived from a public consultation with stakeholders and the evaluation support study prepared by an external consultancy group. 20 out of the 77 respondents to the public consultation indicated that they have been involved in horizontal cooperation agreements since the introduction in 2010 of the R&D and Specialisation BERs and in 2011 of the Horizontal Guidelines. By order of importance, these horizontal cooperation agreements concerned R&D and standardisation cooperation agreements, information sharing, purchasing agreements, commercialisation agreements, production/specialisation agreements, or other types of horizontal cooperation. The evaluation support study also asked a panel of mostly small- and medium-sized enterprises (‘SMEs’) about the incidence of horizontal cooperation agreements, and this resulted in similar responses: Type of agreement Austria France Italy Poland Slovakia Sweden Grand Total Research and development agreements 13 11 11 14 7 11 67 Production/specialisation agreements (any form of joint production cooperation) 12 11 15 11 10 11 70 Information exchange practices 13 12 18 10 5 15 73 Commercialisation agreements (cooperation in the selling, distribution or promotion of products) 12 14 14 13 5 10 68 Standardisation agreements (agreements aimed at developing technical standards in the industry) 6 10 9 9 3 8 45 Joint purchasing agreements 9 10 7 13 15 10 64 Agreements concerning environmental aspects or other sustainability goals 8 10 10 9 6 9 52 Others 5 6 7 10 6 5 39 Grand Total 78 84 94 89 57 80 482 Source: Evaluation support study, Table 2.

The evaluation support study also examined the type of agreements reported by industry: Industry R&D Specialisation Commercialisation Information exchange Joint Purchasing Standardisation Sustainability Others, non-covered Accommodation and food service activities 0 0 3 3 1 5 3 1 Agriculture 7 18 9 5 4 5 11 2 Arts, entertainment and recreation 0 0 2 2 3 0 0 2 Clothing, apparel & footwear 2 5 9 13 9 1 6 3 Construction 3 8 1 4 3 4 5 2 Consumer electronics 1 4 8 4 3 2 2 1 Energy 10 5 3 4 0 4 8 5 Financial and insurance activities 1 0 1 0 0 0 0 0 Food and beverage 3 2 4 5 14 3 3 2 Furniture 0 3 7 4 2 2 2 1 Household appliance 3 7 8 0 9 5 2 4 Human health 10 3 0 4 3 1 1 0 Information and communication 5 0 4 4 1 1 2 0 Pharmaceutical 11 5 1 4 4 1 3 3 Professional and technical activities 3 2 1 4 4 4 0 5 Real estate activities 0 0 0 5 3 2 0 0 Telecommunications 1 2 0 2 0 0 2 1 Transportation and storage 0 0 4 4 0 5 2 3 Other industry, please specify 7 6 3 2 1 0 0 4 Grand Total 67 70 68 73 64 45 52 39 Source: Evaluation support study, Table 7. 3.1.2.Use of the HBERs and Horizontal Guidelines The Commission services asked respondents to the public consultation whether they consulted the rules. Out of the 77 respondents to the public consultation, the majority indicated that they consult the HBERs occasionally (once or twice a year). A slightly smaller group consult the HBERs more frequently, while there is also a sizeable group that never consults these instruments. The numbers for the Horizontal Guidelines are different as more than half of the respondents frequently consult the text for guidance (see Table 3 ). Source: Factual summary of the open public consultation, p. 5 (Figure 4). The evaluation support study also asked the question whether companies consult the HBERs and Horizontal Guidelines in practice. Among the respondents of the study that were party to an R&D, a specialisation or another type of horizontal cooperation agreement, only a limited number indicated that they had occasionally (once or twice a year) or frequently (several times per year) consulted the HBERs or the Horizontal Guidelines for guidance on the establishment and implementation of their horizontal cooperation agreements. This is likely due to the fact that the evaluation support study focused on obtaining the views of SMEs. With regard to the use of the HBERs and the Horizontal Guidelines by NCAs, several NCAs indicated that they did not yet have to apply the HBERs in practice, as they were not involved in investigations of R&D or specialisation agreements. However, most of the NCAs had applied the Horizontal Guidelines in their investigations. In addition, some NCAs have issued national guidelines on horizontal cooperation agreements that to a certain extent complement and/or further clarify the Commission’s Horizontal Guidelines. 3.1.3.Major trends and developments since 2011 The Commission services gathered evidence on major trends and developments from several sources directly related to horizontal cooperation agreements (see section 4.1 below) as well as from other Commission’s initiatives (see section 4.2 below). The stakeholders, which consist notably of companies, business associations, law firms and the NCAs, identified two major developments that present a challenge in the application and interpretation of the HBERs and the Horizontal Guidelines: (i) the digitisation of the economy, and (ii) the need to ensure sustainable development. The digitisation of the economy and the increasing dependence on big data. Digitisation has fundamentally altered the way data is generated, stored, processed, exchanged and distributed. In combination with the internet, digitisation has led to the emergence of new cooperation possibilities and business models. Developments in artificial intelligence further create additional possibilities for new forms of innovation and societal and economic opportunities. Platforms and their ecosystems, typically active in various business areas, have taken up an important role between traditional suppliers and customers while at the same time manufacturers also exert competitive pressure by means of dual distribution models. The competitiveness of firms increasingly depends on their ability to access data. The topic of sustainability was raised by many respondents to the public consultation and the NCA consultation as a significant development over the last 10 years. The European Green Deal appears to have given a new impetus to companies to pursue sustainability initiatives. Many respondents however consider that for such initiatives to succeed, it is important for companies to be able to cooperate. They also consider that it is of equal importance to have clarity on when such cooperation is compatible with EU competition rules and when it is not. Besides these two major trends, stakeholders also identified several other market developments that, to a lesser extent, present a challenge in the application and interpretation of the HBERs and the Horizontal Guidelines. Below is an overview of the developments mentioned most in the context of this evaluation. Globalisation was raised by respondents to the public consultation as a development that places increased competitive pressure on notably retailers and wholesalers. Global trade has strongly developed, despite the emergence of a certain degree of protectionism at international level. Trade in services and data flows are and will remain crucial in the years to come. Over the medium to long term, intensification of trade either in terms of goods or services will benefit the world economy by spurring global efficiency, knowledge transfers, and innovation. However, this will also bring additional pressure to EU companies to become and/or remain competitive at domestic, EU and international level. Market concentration. Nowadays, many markets are supplied by a limited number of companies. Several stakeholders in the public consultation considered further concentration of the market a major development over the last ten years. In particular, respondents pointed to the creation of (grocery) retail alliances. Standard essential patents. Several respondents to the public consultation also mentioned issues relating to standardisation based on patent-protected technologies as a significant development. They reported that more and more industries have begun to employ standardised technologies, ranging from smart manufacturing, grids and cities and other Internet of Things applications. Organisations engaged in standard setting or standard development have developed rules and practices to ensure the licensing of patents that are essential for their standards (‘standard essential patents’ or ‘SEPs’) on FRAND terms. The increased use of SEPs has created opportunities and challenges for those companies relying on standards. A smooth licensing environment is essential to the success of a standard, resulting in a variety of new market players and cooperation models (e.g. in relation to wireless communication technologies).

Competition law enforcement. Some respondents mentioned that competition law enforcement over the last ten years has increased, resulting in more infringement decisions and higher fines. The Commission’s 2019 Annual Report on Competition indicates that in 2018 and 2019 there has been a significant increase in the number of antitrust cases. The review of the HBERs and the Horizontal Guidelines will take these reported developments into account as well as the experience acquired by the Commission and the NCAs in the assessment of horizontal cooperation agreements. 3.2.The Commission’s enforcement action regarding horizontal cooperation agreements With regard to the Commission’s enforcement practice since 2009, the Commission has adopted a few decisions of which the centre of gravity was a horizontal cooperation agreement. In 2010, with the Oneworld decision, the Commission closed its investigation of horizontal cooperation agreements between three airlines subject to a series of commitments. The commitments offered by British Airways, American Airlines and Iberia were made binding upon them for a period of ten years from the date of adoption of the decision. The case concerned horizontal cooperation agreements establishing a revenue-sharing joint venture covering all passenger air transport services on their transatlantic routes between Europe and North America. The agreements provided for extensive cooperation, which included pricing, capacity and scheduling coordination, as well as revenue sharing. The Commission raised preliminary competition concerns regarding six transatlantic routes. On these routes, the parties’ position was particularly strong and there were high barriers to entry or expansion. The agreements could eliminate competition between the parties, which the competitors would not be able to replicate on the routes of concern, and could restrict third parties’ access to connecting traffic, which was of key importance for operations on the transatlantic routes. The parties offered commitments to address the Commission’s preliminary competition concerns. These commitments include making slots available for competitors at certain airports, concluding special prorate agreements with competitors on the transatlantic routes of concern (e.g. obtain favourable terms from the parties to carry connecting passengers on flights), and regular reporting obligations to the Commission, among other conditions and obligations. A similar approach was taken by the Commission in 2013 regarding a horizontal cooperation agreement between Air Canada, United Airlines and Lufthansa through which the parties established a revenue-sharing joint venture. The parties addressed the preliminary concerns raised by the Commission through a series of commitments made binding upon the parties for a period of ten years from the date of adoption of the decision. In the Refrigerants case, the Commission issued a Statement of Objections in 2014 addressed to Honeywell and DuPont regarding their horizontal cooperation agreements of 2010 relating to production arrangements and the development of production processes concerning a new refrigerator for use in car air conditioning systems. In 2006, the EU adopted new standards on air conditioning systems in motor vehicles with the aim of reducing harmful emissions and combating global warming. R-1234yf was the only commercially available refrigerant with a sufficiently low global warming potential (GWP) to comply with the new EU standards. Honeywell and DuPont were the only two suppliers of R-1234yf to carmakers. The Commission was concerned that these cooperation agreements between Honeywell and DuPont could hinder competition on the market for R-1234yf. However, in 2017, the Commission closed these proceedings after careful assessment of the evidence and responses from both defendants and interested third parties. 3.3.The NCAs’ enforcement and policy action regarding horizontal cooperation agreements 3.3.1.Enforcement practice by the NCAs The enforcement practice of the NCAs since 2009 regarding horizontal cooperation agreements is described in an external evaluation support study (or ‘evaluation study’) commissioned by Commission services and carried out by an independent contractor. The evaluation study was published in May 2021. Between 1 January 2011 and 31 March 2020, NCAs were active enforcers in the area of horizontal cooperation agreements with a total of 202 reported cases from which 126 were considered relevant for the purpose of the evaluation. Out of these 126 cases, 25 led to a prohibition decision and 20 to a commitment decision by the responsible NCA. The reported reasons for not pursuing the remaining cases were mainly a lack of evidence and the fact that the parties to the agreement had already changed its contents before any final decision by the NCA. The reported cases also include agreements the NCAs looked into informally, without launching formal proceedings. The reported cases can cover several types of horizontal cooperation agreements, if the parties agreed on multiple forms of horizontal cooperation within the same agreement. Therefore, the 126 cases by NCAs involved 174 horizontal cooperation agreements, as 39 cases dealt with more than one type of horizontal cooperation agreement. Table 4 provides an overview of the different types of horizontal cooperation agreements subject to scrutiny by NCAs of the Member States, Norway and the UK. NCAs from 11 countries did not report any relevant cases for the relevant time period and are therefore not included in the table. The most common type of horizontal cooperation agreement subject to NCA investigations were commercialisation agreements (i.e. 50 out of 174 investigated agreements), followed by information exchange agreements (36) and specialisation/production agreements (31). Least common were R&D agreements and agreements labelled as environmental/sustainability agreements, with six and five occurrences respectively (see Table 4 ).

Country Number of NCA investigations Number of horizontal cooperation agreements R&D agreements Specialisation / production agreements Information exchange agreements Purchasing agreements Commercialisation agreements Standardisation agreements Environmental / sustainability agreements Others, non-covered Total number of agreements BG 2 1 1 2 DE 40 4 11 10 9 18 2 2 2 58 DK 18 2 4 5 8 5 1 25 EL 3 1 2 3 ES 8 1 2 2 4 1 10 FI 5 3 3 6 FR 4 3 1 4 HU 1 1 1 IT 6 1 3 1 1 4 1 11 LT 1 1 1 LV 2 2 2 NL 12 4 3 3 2 1 1 14 NO 3 2 1 2 5 PT 1 1 1 RO 1 1 1 SE 14 1 5 7 5 3 2 1 24 SI 1 1 1 UK 4 3 1 1 5 Total 126 6 33 36 24 50 12 5 8 174 Source: Evaluation support study, Table 12. The reported cases concerning horizontal cooperation agreements span across different economic sectors. Many NCA cases involved the construction sector (31), the arts, entertainment and recreation sector (23), the financial and insurance activities sector (21) and the information and communication sector (18). However, there is no typical type of horizontal cooperation agreement for a specific economic sector. Table 5 provides an overview of the outcome of the NCA investigations. Most investigations of the NCAs did not result in a negative decision. The cases concerning specialisation, joint purchasing and standardisation agreements were often closed without a negative decision. NCAs used more frequently prohibition or commitment decisions in cases concerning commercialisation and information exchange agreements. Type of agreement Discontinued proceedings Rejection of complaint Prohibition decision Commitment decision Other outcome Total Multiple agreements 11 5 9 9 5 39 Specialisation agreements 4 3 3 2 12 Information exchange agreements 7 1 7 1 5 20 Purchasing agreements 4 2 2 4 12 Commercialisation agreements 10 4 6 6 26 Standardisation agreements 4 2 2 1 1 10 Environmental agreements 1 3 4 Others, non-covered 1 2 3 Total 41 14 25 20 26 126 Source: Evaluation support study, Table 14. 3.3.2.National guidelines by the NCAs In addition to enforcement through investigations, 9 NCAs (i.e. BE, BG, DE, DK, LU, LV, NL, NO and UK) have issued competition law guidance with regard to horizontal cooperation agreements during the period concerned. Most of these NCA guidelines are meant to complement the Commission’s Horizontal Guidelines, by providing more detailed information and guidance on specific topics such as, for example, joint bidding agreements (e.g. the Danish and Norwegian guidelines), SMEs (e.g. the German guidelines and the Dutch guidelines on tariff agreements for self-employed persons in collective labour agreements), and trade associations (e.g. the Belgian and the Dutch guidelines). The guidelines of the Latvian NCA cover one type of agreement that is not mentioned in the Horizontal Guidelines, namely agreements in the field of inland carriage by rail and carriage by road. The UK authorities adopted guidance on the public transport ticketing schemes block exemption , guidance on cooperation between competitors on the smart meter roll-out. Both the Luxembourg and UK NCA also issued specific guidance in response to COVID-19. Finally, the Dutch NCA has published draft guidelines on sustainability agreements. They aim to provide guidance to economic operators concerning the compatibility with competition rules of agreements that seek to achieve environmental goals. 4.Methodology 4.1.Data gathering, methodology and analysis The Commission services used a wide range of data sources to collect evidence to answer the evaluation questions. For the purpose of this evaluation, a Roadmap was published on 5 September 2019 for a four-week period. The Commission services received feedback from 13 stakeholders including business associations, companies, an academic/research institution and a non-governmental organisation. Between 6 November 2019 and 12 February 2020, the Commission services carried out a public consultation to gather stakeholders’ views on the functioning of the HBERs, together with the Horizontal Guidelines. The public consultation aimed to gather qualitative and quantitative evidence on all five evaluation criteria (i.e. effectiveness, efficiency, relevance, coherence and EU added value). The Commission services received 77 contributions to the public consultation submitted through the online survey. Among the 77 contributions, there were 3 academic and research institutions, 30 business associations, 25 companies, two non-governmental organisations, one public authority, one EU citizen, one trade union, and 14 others (8 of which were law firms). Eight stakeholders also submitted comments in the context of the public consultation, but not through the Commission’s Better Regulation page. The summary report of the contributions to the public consultation was published on the Better Regulation Portal and the dedicated HBERs review webpage on DG Competition's website on 7 April 2020. The summary report is also part of the synopsis report provided in Annex 2 to the Staff Working Document.

The Commission services also conducted a targeted consultation of NCAs and the competition authorities from the United Kingdom and Norway. This consultation was partly based on the same questionnaire as the one used in the public consultation. The remaining part of the questionnaire aimed at obtaining the experiences from the NCAs in view of the specific objective of the intervention as regards the simplification of administrative procedures by the NCAs and the national courts. The information provided by NCAs contributed to the assessment of all five evaluation criteria. A summary report of the targeted NCA consultation was published on the dedicated HBERs review webpage on DG Competition's website on 20 October 2020. It is also part of the synopsis report provided in Annex 2 to the Staff Working Document. The Commission services commissioned an external evaluation study in order to carry out an independent evaluation of the functioning of the HBERs, together with the Horizontal Guidelines, with a particular focus on the evaluation criteria of effectiveness, relevance and efficiency. The purpose of the evaluation study was to gather qualitative and quantitative information on the basis of five tasks: I.Analysis of cases of NCAs, national court judgments and NCA guidelines; II.Analysis of incidence of horizontal cooperation; III.Analysis of cost savings generated by the HBERs and Horizontal Guidelines; IV.Obtaining the views of consumer organisations; and V.Further analysis of three specific types of horizontal cooperation agreements, namely joint purchasing agreements, sustainability agreements and information exchange. In order to fulfil these tasks, the contractor performed desk research, computer assisted telephone interviewing (CATI) and in-depth follow-up interviews with a representative sample of stakeholders from six different Member States. As a result, the evaluation study comprises (i) responses from 300 individual companies (mainly SMEs but also some large companies (4%)) obtained through the CATI program, (ii) 67 in-depth semi-structured interviews of businesses, trade associations and law firms, and (iii) 6 interviews with consumer organisations. It also included the analysis of six case studies and 202 NCAs and court cases. The final report of the evaluation study was published on the dedicated HBERs review webpage on DG Competition’s website in May 2021. In the course of the evaluation, the Commission services received several spontaneous submissions from stakeholders who had either not participated in the public consultation or wanted to supplement their contribution to the public consultation with additional evidence. All such submissions were published on the dedicated HBERs review webpage on DG Competition's website, except for a few where stakeholders had asked the Commission services not to publish for confidentiality reasons. Due to the applicable restrictions caused by the COVID-19 pandemic, a stakeholder workshop that was scheduled to take place in June 2020 had to be cancelled. 4.2. Additional evidence gathered through other Commission initiatives The Commission services have gathered additional evidence relevant to the review of the HBERs, together with the Horizontal Guidelines, through several initiatives, namely: (i) the review of the Vertical Block Exemption Regulation (‘VBER’) and the Guidelines on Vertical Restraints (‘Vertical Guidelines’), (ii) the Special Advisers’ report on competition policy for the digital era (the ‘Special Advisers’ report’), (iii) the 2020 Call for contributions on Competition Policy and the Green Deal, (iv) the Joint Research Centre (‘JRC’) Report on Retail Alliances in the Supply Chain (the ‘JRC Report on Retail Alliances’ or ‘JRC Report’), (v) the 2020 EU Survey on Industrial R&D Investment Trends, and (vi) several developments in matters linked to standardisation. The review of the VBER and the Vertical Guidelines At the end of 2018, the Commission launched an evaluation assessing the functioning of the VBER and the accompanying Vertical Guidelines in view of their expiry on 31 May 2022. During this evaluation, the Commission services gathered evidence from various sources, including a public consultation, a targeted NCA consultation, a stakeholder workshop, an evaluation support study, spontaneous stakeholder submissions and evidence gathered through other Commission initiatives. In the context of the public consultation, some respondents considered that there is a lack of coherence between the VBER and the Vertical Guidelines, on the one hand, and the HBERs and the Horizontal Guidelines, on the other hand, for example concerning the assessment of information exchanges in the context of dual distribution; perceived inconsistencies as regards the definition of potential competitors; and difficulties with identifying the dividing line between the different block exemption regulations. The Special Advisers’ report on competition policy for the digital era On 20 May 2019, the Special Advisers’ report on competition policy for the digital era was published. The Executive Vice-President for Competition, Commissioner Margrethe Vestager, had asked them to explore how competition law should evolve to ensure that also in the digital era it continues to benefit consumers.

The Special Advisers’ report addresses data sharing and data pooling arrangements that are relevant for the current review of the HBERs, together with the Horizontal Guidelines. Such arrangements will frequently be procompetitive but can become anti-competitive. Their competition law assessment will necessarily depend, inter alia, on the type of data shared, the precise form of the data sharing arrangement or data pool as well as the market position of the parties concerned. The Special Advisers’ report provides examples of situations in which data sharing and data pooling arrangements can become anti-competitive, namely: (i) competitors who are denied access (or granted access only on less favourable terms) might be foreclosed from the market; (ii) the data sharing arrangement may amount to an anti-competitive information exchange where it includes competitively sensitive information; (iii) the sharing or pooling of data can discourage competitors from differentiating and improving their own data collection and analytics pipelines; (iv) finally, there may be cases where the granting of access to data on non-FRAND terms may result in an exploitative abuse. The report considers that all these competition concerns remain subject to the efficiency defence under Article 101(3) of the Treaty. The Special Advisors’ report concludes that the competition issues derived from data sharing and data pooling are a relatively new and under-researched topic in competition law and more legal clarity on the principles guiding the competition law assessment may significantly facilitate and promote data sharing. The 2020 Call for contributions on Competition Policy and the Green Deal In October 2020 the Commission launched a consultation on how competition policy can contribute to the attainment of the Green Deal objectives and in February 2021 Executive-Vice President Vestager hosted a public debate on this issue. The Commission will publish a separate report on the learnings from that consultation process. A number of NCAs have also reflected independently on how sustainability objectives can be incorporated in competition law assessment. The JRC Report on Retail Alliances On 4 and 5 November 2019, the Commission (DG AGRI and JRC) organised a workshop, in response to a call from the Parliament, on the nature and functioning of retail alliances and their implications for the agricultural and food supply chain. The findings of the workshop, gathering all relevant stakeholders, are presented in the JRC Report on Retail alliances in the agricultural and food supply chain. The JRC Report advocates a balanced view when considering retail alliances. Due to their diversity in form and activities it is hard to derive general conclusions and a case-by-case assessment is more appropriate. The JRC Report concluded that the current legal framework provides adequate tools to address potential concerns about the practices of retail alliances and to protect both consumers and upstream suppliers. Such tools include competition law, in particular Chapter 5 of the Horizontal Guidelines on purchasing agreements, and legislation on unfair trading practices both at EU and national level. However, given the limited case law and practice regarding the potential harm to upstream suppliers, the JRC Report suggests to give increased attention and orientation for this issue in guidelines by competition authorities. The 2020 EU Survey on Industrial R&D Investment Trends On 17 December 2020, the Commission published ‘The 2020 EU Survey on Industrial R&D Investment Trends’. Investment in R&D is one of the recognised keys to fuel the digital and green transitions in Europe. The Survey targeted a self-selecting sample of the top 1000 EU and UK headquartered R&D investors from the 2019 EU R&D Scoreboard and remained open online for 6 months. The Survey provides evidence on the R&D activities of these top EU R&D corporate investors identified for the past 15 years. This is performed via a survey of R&D levels and trends, location strategies, and other activities of these companies, which are responsible for the bulk of private R&D in the Union. According to the Survey, in the case of large companies, the majority of R&D work is done in-house (75%). Only a quarter of the R&D work is done in collaboration with third parties (17%) or is outsourced (8%). The characteristics of R&D collaboration are illustrated in Figure 2 (below). Source: Survey on EU R&D, p. 19 The Survey on EU R&D concluded that the size of the undertaking is an important determinant for how external R&D is organised. Large companies (i.e. more than 50000 employees) prefer to do R&D in collaboration with third parties, as a way of internalising new knowledge, rather than outsourcing. More than half of the R&D collaborations analysed in the Survey were vertical in nature, performed with either suppliers (33%) or clients (22%). Specialised R&D firms act as R&D collaborator one third of the time, while competitors are least searched for partners for R&D collaboration (11%). The Survey also found that for large companies R&D collaborations were almost evenly split between single partners (57%) and consortia (43%), while small companies prefer single partnerships (82% and 18%, respectively). Moreover, companies tend to collaborate with other companies of similar size. Developments in matters linked to standardisation Since 2011, a number of different EU and national events address specific standardisation related issues. These concerned in particular the matter of SEPs and include the following: ·The general framework of European standardisation policy which includes Regulation (EU) No 1025/2012 and the announced standardisation strategy; ·The Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements of 2014;

·The judgment of the Court of Justice of the European Union (‘CJEU’) of 16 July 2015, Huawei v. ZTE; ·The Communication of 2017 entitled ‘Setting out the EU approach to Standard Essential Patents’ the European Commission endorsed by Council Conclusions 6681/18; ·The Commission’s Action Plan on Intellectual Property (‘IP Action Plan’) to support the EU’s recovery and resilience adopted on 25 November 2020; ·Several judgments of national courts. For the purpose of the evaluation of the HBERs and the Horizontal Guidelines, some relevant aspects are described below. Concerning SEP licensing, one of the most disputed questions is whether SEP holders are under an obligation to grant FRAND licenses to entities at any level of the value chain requesting such licenses or whether they can select the level in the value chain where they grant FRAND licenses. In some cases, this licensing is horizontal in nature when it involves cross-licensing between companies that compete at the same level of the value chain. In other cases, it is a vertical transaction which is subject to the Technology Transfer Block Exemption Regulation (‘TTBER’). In the ‘Contribution to the Debate on SEPs’ of 2021, the Group of Experts on Licensing and Valuation of Standard Essential Patents (‘SEPs Expert Group’), a Commission Expert Group appointed in 2018, did not take a position on this issue but proposed a number of principles that could guide the licensing of SEPs in the value chain, namely licensing at a single level in a value chain, a requirement of an uniform FRAND royalty and the passing of the FRAND royalty downstream. The Contribution of the SEPs Expert Group also raises questions, for example for aspects related to patent pools. According to some members of this SEPs Expert Group, transaction costs could be further reduced if implementers were allowed to form groups to jointly negotiate licenses on behalf of their group members. However, those members point out that the mechanism and controls to form and operate these license control groups in compliance with the relevant competition rules would need to be developed. The IP Action Plan of November 2020 announced that the Commission will further promote transparency and predictability in SEP licensing in the most affected sectors, combined with possible reforms. These may include regulatory proposals if and where needed, aiming to clarify and improve the SEPs framework and offer effective transparency tools. Finally, competition problems may also arise when the midstream manufacturer is in competition with the SEP holder and, for implementing the license, would have to disclose its customers to this competing SEP holder. This issue has also been discussed for example in the Contribution of the SEPs Expert Group, according to which many, if not all, major SEP holders have Chinese walls between their licensing departments and their commercial departments to prevent such flows of information. Similar problems may also arise when SEP licensing is done at end product level, and the same solutions can be applied. 4.3.Processing and triangulating of the evidence collected For the purposes of the evaluation of the HBERs and Horizontal Guidelines, evidence from the various sources had to be analysed and triangulated. The main sources of the evidence used to inform the assessment of each evaluation criterion are listed in the table below. A further breakdown of this table, which includes the evaluation questions for each criterion and a more detailed reference to the sources used, is provided in the evaluation matrix contained in Annex 3 to the Staff Working Document. Sources Public consultation (including spontaneous submissions) Targeted NCA consultation Evaluation Study Other Commission initiatives Criteria Effectiveness ✔ ✔ ✔ ✔ Efficiency ✔ ✔ ✔ Relevance ✔ ✔ ✔ ✔ Coherence ✔ ✔ ✔ EU added value ✔ ✔ In line with the general objective of the HBERs and Horizontal Guidelines, the evidence-gathering carried out by the Commission services focused primarily on the views of other agencies enforcing EU competition law (i.e. NCAs) and companies having to self-assess the compliance of their horizontal cooperation agreements with Article 101 of the Treaty on the functioning of the EU. Through the targeted consultation and some of the tasks of the evaluation study, the Commission services collected the views of NCAs, which were complemented with the Commission’s own experience in this area and additional research performed by the contractor. Through the public consultation and some of the tasks of the evaluation study, the Commission services collected mainly the views of businesses (both large companies and SMEs), business associations and law firms advising companies and associations in this area of law. For the assessment of each evaluation criterion, the Commission services proceeded as follows: The assessment started with the results of the public consultation. An in-depth analysis of the feedback resulted in a preliminary but comprehensive understanding of the main issues faced by stakeholders as regards the functioning of the current rules. It allowed the Commission services to establish the issues on which stakeholders held common positions, as well as the issues on which their positions diverged. The assessment of the specific issues raised was done based on (i) the examples and the level of detail provided by stakeholders to support their concerns with concrete evidence, (ii) the variety of different positions and (iii) the extent to which different types or groups of stakeholders shared the same view. The targeted consultation of the national competition authorities aimed to gather their perspective on the five evaluation criteria. It provided a significant amount of evidence on the experience of the NCAs in applying the HBERs and the Horizontal Guidelines, as well as their views on a number of specific issues with the current rules. The evidence of the public consultation was compared to and contrasted with the evidence resulting from the targeted consultation of the NCAs. The combination of these sources resulted in a more complete and balanced understanding of the areas where the HBERs, together with the Horizontal Guidelines, have not been functioning well, or not functioning as well as they could.

On this basis, the evaluation study was designed to (i) enrich the list of issues raised by expanding the number of stakeholders interviewed (in particular involving more SMEs and seeking the views of consumer organisations) and (ii) further deepen and/or add a different perspective on issues that were already identified (with the aim of correcting for potential biases that might have been present in the evidence collected previously). The combined results of the public consultation, the NCA consultation and the evaluation study provided the stakeholders’ perspective on the effectiveness, efficiency, relevance, coherence and EU added value of the HBERs, together with the Horizontal Guidelines. 4.4.Limitations of the analysis The analysis of the different evaluation criteria, including the methodology applied and the evidence sources used for that purpose, is subject to the following limitations: the difficulty of gathering quantitative evidence on costs and benefits related to the HBERs and the Horizontal Guidelines (see section 4.4.1 below), a certain lack of representativeness of stakeholder feedback (see section 4.4.2 below) and a lack of information about consumer views (see section 4.4.3 below). Each of these sections describes the nature of the limitation and the extent to which it was possible to address it in the evaluation. 4.4.1.Evidence on HBERs related costs and benefits As regards the evaluation criterion of efficiency, it proved difficult to collect quantitative evidence on the costs of applying the HBERs and the Horizontal Guidelines. This is mainly due to the fact that companies appear to assess the costs they incur to ensure compliance of their business operations with EU competition law at a general level. Businesses therefore do not appear to distinguish between the type of agreement concerned or the instrument relied on for the purposes of their self-assessment (e.g. HBERs or Horizontal Guidelines). The difficulty of gathering cost-related evidence is reflected in the low response rate of stakeholders to questions in the public consultation aimed at gathering best effort estimates of HBERs related compliance costs. The majority of the stakeholders that replied to the section on efficiency indicated that they did not know whether (i) costs had increased or decreased compared with the previous legislative framework; whether (ii) the cost of ensuring compliance would increase or decrease in the absence of the HBERs if only the Horizontal Guidelines applied, or whether (iii) costs are proportionate to the benefits reported by the HBERs and the Horizontal Guidelines. Nor were the NCAs able in the context of the targeted consultation to quantify the costs that the application of the HBERs, together with the Horizontal Guidelines, created for them. In the same way, it proved difficult to obtain quantitative evidence on the balance between the benefits and the costs of applying the HBERs and the Horizontal Guidelines. Companies only provided qualitative evidence in reply to the question in the public consultation relating to this issue, which reflects the difficulty to properly estimate this parameter. The same applies to the NCAs. To overcome this limitation, the study aimed to gather additional evidence about costs and benefits related to the application of the HBERs and the Horizontal Guidelines on the basis of six case studies in the form of interviews. The interviewed respondents were a mix of medium and large sized companies and two business associations. As reported in the study, none of the respondents could provide specific figures concerning the costs in question but all of them provided a qualitative assessment. The lack of quantitative data in relation to these two issues made it difficult to provide a robust quantitative assessment of the efficiency of the HBERs and the Horizontal Guidelines. The conclusions drawn in section 5.2 below therefore essentially rely on the qualitative evidence provided by stakeholders in response to the public consultation and in the context of the evaluation study. 4.4.2.Representativeness of stakeholder feedback Evaluation activities subject to voluntary participation, by definition, do not necessarily lead to representative results. While the Commission services received contributions from a large variety of stakeholder groups, some of them accounted for a higher share of responses than others. However, this did not have any meaningful impact on the results of the evaluation since the areas identified by stakeholders as either functioning well or not functioning well did not differ to an appreciable extent within a particular stakeholder group. This means that a more limited participation of some stakeholder groups did not result in a less complete overview of the views of those stakeholder groups on the functioning of the HBERs and Horizontal Guidelines. Moreover, the evaluation study aimed at reducing any potential bias within each stakeholder group to the detriment of small and medium sized stakeholders who may not have had the resources to participate in the public consultation. In the assessment set out in section 5.1 below, reference is made to specific stakeholder groups whenever the views reported were held primarily by one or more different stakeholder groups. While indicative of a trend, the fact that a view was broadly shared by all or only some of the stakeholder groups, does not however mean that the evaluation disregards diverging views, both within the same or across different stakeholder groups/sectors. This is also reflected in Annex 4 to this Staff Working Document, which presents the different views and issues raised by stakeholders per type of horizontal cooperation agreement, regardless of whether they were supported by a large or small number of stakeholders. These views will be taken into account in any next steps following the evaluation. 4.4.3.Limited evidence about consumer views Consumers and consumer associations only made a limited contribution to this evaluation, even though they were specifically addressed in the context of the evaluation study commissioned by the Commission services. There are several reasons for this. First, the HBERs, together with the Horizontal Guidelines, are a technical piece of legislation, which is primarily aimed at providing guidance to companies self-assessing compliance of their horizontal cooperation agreements with EU competition law. Consumers and consumer associations may therefore be neither aware of their existence, nor familiar with their functioning. Second, despite having a potential impact on the prices at which consumers buy products and services and the choice of products and services available to them, consumers are neither a party to horizontal cooperation agreements, nor privy to the conditions stipulated in such agreements. 5.Analysis and answers to the evaluation questions

This section presents the assessment of the HBERs, together with the Horizontal Guidelines, based on the five evaluation criteria (effectiveness, efficiency, relevance, coherence and EU added value). 5.1. Effectiveness 5.1.1.The evaluation questions The general objective of the HBERs, together with the Horizontal Guidelines, is to make it easier for undertakings to cooperate in ways which are economically desirable and without adverse effects from the point of view of competition policy. The first of the specific objectives of the HBERs and the Horizontal Guidelines is to ensure an effective protection of competition. The second is to provide adequate legal certainty to stakeholders, making it easier for them to perform the self-assessment required under Regulation (EC) No 1/2003. These objectives are closely linked to the general objective. Horizontal cooperation agreements that comply with Article 101 of the Treaty will increase the competitiveness of the European economy while ensuring effective competition for the benefit of European businesses and consumers. Similarly, by providing legal certainty to companies as to what business actions they can undertake without a risk of infringing EU competition law, the Commission reduces the compliance costs of companies that have to do a self-assessment. Finally, the HBERs, together with the Horizontal Guidelines, also aimed at simplifying administrative supervision by providing a framework for the Commission, NCAs and national courts for the assessment of horizontal cooperation agreements. As part of the effectiveness analysis, the Commission services have investigated whether the HBERs, together with the Horizontal Guidelines, have met these objectives. For this purpose, the Commission services commissioned an evaluation study and in parallel asked stakeholders in the public consultation and the NCAs first of all whether the intervention has contributed to promoting competition in the EU. The Commission services further verified in the public consultation whether the stakeholders felt that the HBERs and the Horizontal Guidelines as a whole have provided adequate legal certainty. The assessment of this objective sought to determine whether the rules provide increased legal certainty, as compared to a situation without the HBERs, but also whether there is room for improvement in achieving this objective. It should be kept in mind when assessing this objective that the assessment by stakeholders of the level of legal certainty provided by the HBERs and the Horizontal Guidelines may depend on the difficulties they encounter when applying the rules to their particular field of activity. Therefore, the assessment of this objective relies not only on the stakeholders’ overall perception of the level of legal certainty achieved by the intervention as a whole, which reflects their views on the usefulness of the exemptions, but also pays particular attention to the specific areas of the intervention for which stakeholders (even if only a few) consider that there is uncertainty. In order to allow the Commission services to perform this more detailed analysis of the replies, the Commission services asked the stakeholders in the public consultation whether individual provisions in the HBERs and specific chapters in the Horizontal Guidelines provided adequate legal certainty. The Commission services also asked the stakeholders in the public consultation whether the intervention provided legal certainty to other types of horizontal cooperation agreements outside those specifically identified in the HBERs and Horizontal Guidelines. The Commission services asked NCAs similar questions in their targeted consultation and this objective also formed part of the evaluation study. To assess whether the effects observed could be credited to all parts of the intervention, the Commission services asked the stakeholders in the public consultation whether the HBERs and the Horizontal Guidelines increased legal certainty compared with a situation where the HBERs would not exist but only the Horizontal Guidelines applied. The HBERs set out a number of conditions that R&D and specialisation agreements need to meet in order to benefit from the block exemption. These conditions have been defined with the purpose to give exemption only to those agreements for which it can be assumed with sufficient certainty that they generate efficiencies that outweigh, in line with Article 101(3) of the Treaty, the harm caused by the restriction of competition. The Horizontal Guidelines complement the HBERs providing an analytical framework to assess the most common types of horizontal cooperation agreements, including all forms of R&D and specialisations agreements. The Commission services have therefore asked stakeholders in the public consultation and NCAs whether the HBERs and Horizontal Guidelines have allowed them to correctly identify the horizontal cooperation agreements that are compliant with Article 101 of the Treaty. In order to allow the Commission services to perform a more detailed analysis of the replies, also here the Commission services have asked stakeholders and NCAs whether individual provisions in the HBERs and specific chapters in the Horizontal Guidelines contributed to this purpose. To measure whether the intervention indeed met the objective of simplifying the application of competition rules by public authorities, the Commission services asked the NCAs whether the R&D and Specialisation BERs simplified their application of competition rules compared to a situation where the HBERs would not exist but only the Horizontal Guidelines applied. 5.1.2.The main findings regarding the effectiveness of the intervention Overall, the HBERs and the Horizontal Guidelines have made it easier for companies to cooperate in ways which are economically desirable and without adverse effects from the point of view of competition policy. The intervention promotes competition and offers legal certainty to companies in the conception and implementation of their horizontal cooperation agreements. This applies especially to the HBERs that are directly applicable in the Member States and thereby prevent that NCAs and national courts apply the rules in a divergent manner. Both HBERs offer a safe harbour in the form of a market share threshold which facilitates the self-assessment of horizontal R&D and specialisation agreements. The HBERs recognise the economic efficiencies that certain R&D and specialisation agreements bring and their procompetitive nature. Companies also appreciate the lists of hard core restrictions in the HBERs. As long as companies meet the requirements of the HBERs in their horizontal cooperation agreements, they have the legal certainty that they do not infringe Article 101 of the Treaty. The specific chapters on R&D agreements and production agreements in the Horizontal Guidelines complement the HBERs and assist companies in applying the HBERs’ rules. The evaluation showed that, in particular, the binding nature of the HBERs provided additional legal certainty compared to a hypothetical situation in which only the Horizontal Guidelines would exist. The Horizontal Guidelines set out the general analytical framework for the assessment of horizontal cooperation agreements under Article 101 of the Treaty, in line with their objectives. The Horizontal Guidelines thereby offer legal certainty in the self-assessment of a larger number of horizontal cooperation agreements, even beyond those explicitly mentioned in individual chapters. The level of legal certainty that the Horizontal Guidelines provide differs for various types of horizontal cooperation agreements covered by the Horizontal Guidelines. The HBERs and Horizontal Guidelines also meet their objective as regards the simplification of the administrative supervision. They facilitate and simplify the assessment of horizontal cooperation agreements by the Commission, the NCAs and national courts. Notably the use of definitions, market share thresholds and lists of hard core restrictions assist the NCAs in assessing R&D and specialisation agreements under Article 101 of the Treaty. The Horizontal Guidelines meet this objective because they bring further guidance and clarifications on the assessment and provide practical examples of the analysis of different types of horizontal cooperation agreements. Even though the Horizontal Guidelines are not binding on the Member States, many NCAs use the intervention as a comprehensive framework in their assessment of horizontal cooperation agreements. The intervention has however not fully lived up to its potential as notably the results from the public consultation and from the evaluation study have identified a number of areas where effectiveness can be improved. The evaluation indicated that the rules are not always adapted to the developments that have taken place over the last ten years. This applies notably as regards digitisation and sustainability.

The respondents to the public consultation and the evaluation study have also commented that the rules in the HBERs are in general too rigid and complex for some sectors (e.g. non-traditional and/or dynamic sectors) and therefore do not allow horizontal cooperation agreements to reach their full potential. In addition, the evidence indicated that some of the provisions in the HBERs, notably in the R&D BER, are unclear and difficult to interpret, which affects the effectiveness of the intervention. Some of the evidence, notably that supplied by respondents to the public consultation, points at the fact that the scope of the Specialisation BER is too limited. This is not confirmed by other evidence, notably not by the replies of the NCAs to their targeted consultation, so it is not yet possible to draw conclusions on this point. The evidence also suggests that certain stakeholders, in particular companies, business associations and law firms, consider that the market share thresholds in the HBERs are too low. The evidence shows that especially companies and law firms consider market definition and the calculation of market shares complex and burdensome due to the difficulty of gathering the information needed to make such assessments. While the use of market share thresholds in the instruments under evaluation brings legal certainty, the proper definition of the markets can be complex and uncertain in areas subject to rapid technological development. According to the general outcome of the evaluation, the Horizontal Guidelines do not fully meet the objectives as they are not binding on the NCAs and national courts, do not offer a safe harbour for all pro-competitive horizontal cooperation agreements and are not adapted to the developments over the last ten years as regards, for example, innovation facilitated by digitisation and collaboration needed to address sustainability objectives. The guidance in some chapters of the Horizontal Guidelines is described as vague and insufficiently clear. As a consequence, there is a risk that companies tend to adopt a cautious approach in the case by case assessment of their horizontal cooperation agreements. The lack of legal certainty may lead companies to abandon their cooperation projects for fear of failing to meet the requirements of Article 101(3) of the Treaty and unintentionally chill incentives to engage in socially desirable R&D cooperation. The fact that the Horizontal Guidelines are not binding on national competition authorities in the Member States is seen as a weakness which could entail divergent enforcement standards which also may have a chilling effect on horizontal cooperation. Effective protection of competition The evidence has established that the HBERs and Horizontal Guidelines meet their objective of providing effective protection of competition. The majority of respondents to the public consultation, across all stakeholders groups, perceived that the HBERs and the Horizontal Guidelines have contributed to promoting competition. Within that group, most respondents considered that the HBERs and the Horizontal Guidelines have contributed only to a certain extent or only in specific sectors to the promotion of competition. Respondents with an overall positive opinion supported their view by pointing out, for example, that the HBERs and Horizontal Guidelines have made a considerable contribution to the consistent application of Article 101 of the Treaty throughout the Union. They have generated a balanced legal framework that has been useful for assessing cooperation agreements between competitors, such as R&D and standardisation agreements, enabling rather than inhibiting legitimate cooperation and preserving incentives to innovate. The respondents that consider the positive effect to be limited mentioned as reasons for this, for example, the perceived lack of guidance regarding certain types of horizontal cooperation agreements that were not explicitly mentioned in the HBERs or the Horizontal Guidelines. Sustainability agreements and infrastructure sharing agreements were mentioned here in particular as an area where guidance was lacking. Contributors also mentioned that the current HBERs and Horizontal Guidelines are not adapted to recent developments in the market, such as the dynamics of the digital economy, the entry of disruptive technologies or big-data applications, which impede effective self-assessment. Respondents also believed that further clarity from the Commission through a fast-track guidance process would be welcomed, for example, if the horizontal cooperation is of a certain magnitude and/or complexity. A limited number of respondents were neutral regarding the contribution of the HBERs and Horizontal Guidelines to promoting competition. These respondents pointed to the vagueness of some chapters of the Horizontal Guidelines and the strictness of the HBERs, especially compared to other non-EU competition rules. As regards the views from the NCAs, the majority considered that the HBERs and the Horizontal Guidelines have contributed to promoting competition in the Union. The NCAs explained that the Horizontal Guidelines contributed to promoting companies’ compliance with competition rules when entering into horizontal cooperation agreements. In addition, NCAs indicated that the Horizontal Guidelines helped to reduce the risk of divergent application of Article 101 of the Treaty in individual Member States and were very useful when evaluating the benefits and competitive concerns of horizontal cooperation agreements and other arrangements. One NCA also mentioned that in the absence of the HBERs and the Horizontal Guidelines, companies would have difficulty distinguishing horizontal cooperation agreements from cartels and assessing such agreements under Article 101 of the Treaty. This would make such agreements excessively risky and unlikely to materialise despite the potential benefits for consumers that they may bring. Only a few NCAs indicated that the HBERs and the Horizontal Guidelines partly contributed to the promotion of competition. These NCAs pointed out that the effects of these rules were by their nature relatively limited in scope and that their ability to promote competition might be probably reduced to certain forms of cooperation (e.g. R&D) and certain sectors and markets, such as purchasing markets. Legal certainty Respondents to the public consultation and the evaluation study as well as the NCAs were asked to assess the level of legal certainty provided by the HBERs and the Horizontal Guidelines for specific types of horizontal cooperation agreements. Information exchange The evidence gathered in the evaluation suggests that Chapter 2 of the Horizontal Guidelines, that deals with information exchange, in general does not fully meet the objective of providing legal certainty. The evidence shows however a difference in the opinion of those that use the chapter for the self-assessment of their agreements (mostly companies, business associations and law firms) and those that use the chapter for the enforcement of competition law (the NCAs). Notably the respondents to the public consultation and those featured in the evaluation study feel that the chapter could be further adjusted to developments over the last ten years, in particular related to digitisation. In particular, the chapter does not provide sufficient guidance on information exchange in new business models that have developed as a consequence of digitisation. The evaluation also finds that the information exchange section provides insufficient legal certainty concerning types of information exchange that may be considered as pro-competitive. Also, the guidance does not take into account developments in the case law of the Court of Justice of the European Union and of national courts in the last ten years. The NCAs on the other hand considered that Chapter 2 of the Horizontal Guidelines provided sufficient legal certainty for them in the assessment of information exchanges. The evidence gathered in the evaluation suggests that Chapter 2 of the Horizontal Guidelines does not fully meet its objective regarding the provision of legal certainty.

The majority of the respondents to the public consultation considered that Chapter 2 of the Horizontal Guidelines provided insufficient legal certainty allowing them to take part in information exchanges without the risk of infringing EU competition law. They pointed in particular at the lack of guidance regarding forms of information exchange they consider as permitted and pro-competitive, such as exchanges in the context of restructuring and data pooling of non-sensitive data. Companies, business associations and law firms have also commented on the fact that in their view too many forms of information exchange are described as restrictive of competition in the chapter, or even as a restriction by object. Because of this perceived restrictive view, companies feel they may forego opportunities for horizontal cooperation. Respondents have pointed to a number of specific paragraphs in the chapter in order to highlight the lack of concrete guidance necessary for self-assessment, notably in the sections on market characteristics and characteristics of the information exchange. This applies for instance to the indirect exchange of information, unilateral announcements, the qualification as strategic data and the exchange of aggregated data. Respondents have also argued that the chapter lacks guidance on information exchange between parent companies and their joint venture(s). In this respect they consider the current guidance to differ from that provided by the case law and EU merger control rules. The developments over the past ten years also contributed to the reported lack of legal certainty of the chapter on information exchange. Companies, business associations and law firms indicated that the rise of scenarios whereby parties are at the same time in a horizontal and vertical relation increased the need to provide sensitive information for the purpose of the vertical relationship. The current text does not provide clear guidance for such situations. Similarly, several of these respondents considered that the chapter brought too little legal certainty regarding information exchanges linked to digitisation in general. More specifically, stakeholders considered in this regard that there is a lack of guidance on data pooling/data sharing, the use of algorithms and data exchanges in ecosystems and infrastructure sharing, notably in telecommunications. Overall, the NCAs considered that Chapter 2 of the Horizontal Guidelines provided sufficient legal certainty for them in the assessment of information exchanges. Several NCAs mentioned that they have applied the rules incorporated in the chapter and it provided a helpful framework for their investigations. The NCAs that considered that the chapter lacked legal certainty mentioned that guidance was insufficient regarding certain (more recent) concepts such as data sharing and data pooling, illegal signalling, the use of benchmarks by trade associations, hub and spoke arrangements and the definition of genuine public information. NCAs also pointed at recent case law that was not reflected in the Chapter. Although in the course of the evaluation study a relatively high number of CATI respondents agreed to discuss information exchange agreements (29 small enterprises, 24 micro enterprises, 19 medium enterprises and 1 large enterprise took part in CATI interviews), only 13 out of these 73 respondents had ever consulted the relevant chapter in the Horizontal Guidelines. Those 13 respondents generally considered that the chapter provided sufficient legal certainty. The respondents to the semi-structured interviews held in the context of the evaluation study (i.e. companies, business associations and law firms) took a similar view as the stakeholders that responded to the public consultation. Also here, respondents mentioned that the information exchange chapter lacks guidance on when an exchange of information is not deemed a restriction by object. In general, respondents to the semi-structured interviews commented on the lack of examples in the guidelines regarding the specificities of particular markets (e.g. those in which they were active). Notably examples regarding new business models in the digital economy are missing from the current chapter. Consumer organisations also considered that the digitisation of the economy entails that the current rules on information exchange do not meet present and future challenges. In addition, new digital business models blur the separation between horizontal and vertical relations such as in the case of integrated business models. The guidance is therefore considered insufficient for cases where suppliers engage in vertical information exchange on volumes and prices, while simultaneously selling directly to consumers. The Horizontal Guidelines also lack specific examples about intra-ecosystem and platform-based information exchange to offer companies greater legal certainty. The difference between the views of the respondents to the public consultation and those mentioned in the study on the one hand and the NCAs on the other hand, may be related to the different use they make of the Horizontal Guidelines. Some NCAs specified that the chapter provided legal certainty for them in their investigations of horizontal cooperation agreements. The views of companies using the chapter for the self-assessment of their agreements do not necessarily have to be similar. Several of the NCAs also indicated that they did not have much experience with investigating horizontal cooperation agreements. R&D agreements The evidence gathered in the evaluation suggests that the R&D BER, together with Chapter 3 of the Horizontal Guidelines, are overall useful instruments that increase legal certainty as compared to a situation without the BER. Nevertheless, the R&D BER is considered complex. The evaluation identified certain provisions that, according to stakeholders lack clarity, are difficult to apply or are no longer adapted to recent market developments. Respondents to the public consultation, the evaluation study and a few NCAs considered that, in particular, the clarification of several definitions included in the R&D BER and the Horizontal Guidelines (e.g. R&D poles), the conditions for exemption and/or the calculation of market shares (to determine whether the threshold is met) are among the most challenging provisions of the R&D BER. The evaluation also indicated that the inclusion of practical and more up-to-date examples and references to recent case law could incr