Commission Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of specialisation agreements (Text with EEA relevance)
Date: 2000-11-29
Institutions: European Commission
Subjects: inter-company agreement, research and development, specialisation agreement

5.12.2000

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COMMISSION REGULATION (EC) No 2658/2000

of 29 November 2000

on the application of Article 81(3) of the Treaty to categories of specialisation agreements

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EEC) No 2821/71 of 20
December 1971 on the application of Article 85(3) of the
Treaty to categories of agreements, decisions and concerted
practices (1), as last amended by the Act of Accession of
Austria, Finland and Sweden, and in particular Article 1(1)(c)
thereof,

Having published a draft of this Regulation (2),

Having consulted the Advisory Committee on Restrictive Prac-
tices and Dominant Positions,

Whereas:

(1)

(2)

(3)

Regulation (EEC) No 2821/71 empowers the Commis-
sion to apply Article 81(3) (formerly Article 85(3)) of
the Treaty by regulation to certain categories of agree-
ments, decisions and concerted practices falling within
the scope of Article 81(1) which have as their object
specialisation,
for
achieving it.

agreements necessary

including

Pursuant to Regulation (EEC) No 2821/71, in particular,
the Commission has adopted Regulation (EEC) No 417/
85 of 19 December 1984 on the application of Article
85(3) of the Treaty to categories of specialisation agree-
ments (3), as last amended by Regulation (EC) No 2236/
97 (4). Regulation (EEC) No 417/85 expires on 31
December 2000.

effective protection of

A new regulation should meet the two requirements of
ensuring
competition and
providing adequate legal security for undertakings. The
pursuit of these objectives should take account of the
need to simplify administrative supervision and the legis-
lative framework to as great an extent as possible. Below
a certain level of market power it can, for the applica-
tion of Article 81(3), in general be presumed that the
specialisation agreements will
positive
outweigh any negative effects on competition.

effects of

(4)

Regulation (EEC) No 2821/71 requires the exempting
regulation of the Commission to define the categories of
agreements, decisions and concerted practices to which

(1) OJ L 285, 29.12.1971, p. 46.
(2) OJ C 118, 27.4.2000, p. 3.
(3) OJ L 53, 22.2.1985, p. 1.
(4) OJ L 306, 11.11.1997, p. 12.

(5)

(6)

(7)

(8)

(9)

it applies, to specify the restrictions or clauses which
may, or may not, appear in the agreements, decisions
and concerted practices, and to specify the clauses which
must be contained in the agreements, decisions and
concerted practices or the other conditions which must
be satisfied.

It is appropriate to move away from the approach of
listing exempted clauses and to place greater emphasis
on defining the categories of agreements which are
exempted up to a certain level of market power and on
specifying the restrictions or clauses which are not to be
contained in such agreements. This is consistent with an
economics-based approach which assesses the impact of
agreements on the relevant market.

For the application of Article 81(3) by regulation, it is
not necessary to define those agreements which are
capable of falling within Article 81(1). In the individual
assessment of agreements under Article 81(1), account
has to be taken of several factors, and in particular the
market structure on the relevant market.

The benefit of the block exemption should be limited to
those agreements for which it can be assumed with
sufficient certainty that they satisfy the conditions of
Article 81(3).

Agreements on specialisation in production generally
contribute to improving the production or distribution
of goods, because the undertakings concerned can
concentrate on the manufacture of certain products and
thus operate more efficiently and supply the products
more cheaply. Agreements on specialisation in the
provision of services can also be said to generally give
rise to similar improvements.
It is likely that, given
effective competition, consumers will receive a fair share
of the resulting benefit.

Such advantages can arise equally from agreements
whereby one participant gives up the manufacture of
certain products or provision of certain services in
favour of another participant (‘unilateral specialisation’),
from agreements whereby each participant gives up the
manufacture of certain products or provision of certain
services in favour of another participant
(‘reciprocal
specialisation’) and from agreements whereby the partici-
pants undertake to jointly manufacture certain products
or provide certain services (‘joint production’).

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(10) As unilateral specialisation agreements between non-
competitors may benefit
from the block exemption
provided by Commission Regulation (EC) No 2790/
1999 of 22 December 1999 on the application of
Article 81(3) of the Treaty to categories of vertical agree-
ments and concerted practices (1), the application of the
present Regulation to unilateral specialisation agree-
ments should be limited to agreements between compet-
itors.

(11) All other agreements entered into between undertakings
relating to the conditions under which they specialise in
the production of goods and/or services should fall
within the scope of this Regulation. The block exemp-
tion should also apply to provisions contained in specia-
lisation agreements which do not constitute the primary
object of such agreements, but are directly related to and
necessary for
implementation, and to certain
related purchasing and marketing arrangements.

their

(17)

In order to facilitate the conclusion of specialisation
agreements, which can have a bearing on the structure
of the participating undertakings, the period of validity
of this Regulation should be fixed at 10 years.

(18)

This Regulation is without prejudice to the application
of Article 82 of the Treaty.

(19)

the primacy of
In accordance with the principle of
Community law, no measure taken pursuant to national
laws on competition should prejudice the uniform
application throughout
the
Community competition rules or the full effect of any
those rules,
measures adopted in implementation of
including this Regulation,

the common market of

(12)

(13)

(14)

(15)

To ensure that the benefits of specialisation will materia-
lise without one party leaving the market downstream of
production, unilateral
specialisation
agreements should only be covered by this Regulation
where they provide for supply and purchase obligations.
These obligations may, but do not have to, be of an
exclusive nature.

and reciprocal

HAS ADOPTED THIS REGULATION:

Article 1

Exemption

It can be presumed that, where the participating under-
takings' share of the relevant market does not exceed
20 %, specialisation agreements as defined in this Regu-
lation will, as a general rule, give rise to economic
benefits in the form of economies of scale or scope or
better
allowing
consumers a fair share of the resulting benefits.

technologies, while

production

not

should

exempt

This Regulation
agreements
containing restrictions which are not indispensable to
attain the positive effects mentioned above. In principle
certain severe anti-competitive restraints relating to the
fixing of prices charged to third parties,
limitation of
output or sales, and allocation of markets or customers
should be excluded from the benefit of the block exemp-
tion established by this Regulation irrespective of the
market share of the undertakings concerned.

the non-exemption of
The market share limitation,
certain agreements and the conditions provided for in
this Regulation normally ensure that the agreements to
which the block exemption applies do not enable the
participating undertakings to eliminate competition in
respect of a substantial part of the products or services
in question.

1.
Pursuant to Article 81(3) of the Treaty and subject to the
provisions of this Regulation, it is hereby declared that Article
81(1) shall not apply to the following agreements entered into
between two or more undertakings (hereinafter referred to as
‘the parties’) which relate to the conditions under which those
undertakings specialise in the production of products (herein-
after referred to as ‘specialisation agreements’):

(a) unilateral specialisation agreements, by virtue of which one
party agrees to cease production of certain products or to
refrain from producing those products and to purchase
them from a competing undertaking, while the competing
undertaking agrees to produce and supply those products;
or

(b) reciprocal specialisation agreements, by virtue of which two
or more parties on a reciprocal basis agree to cease or
refrain from producing certain but different products and
to purchase these products from the other parties, who
agree to supply them; or

(c) joint production agreements, by virtue of which two or
more parties agree to produce certain products jointly.

This exemption shall apply to the extent that such specialisa-
tion agreements contain restrictions of competition falling
within the scope of Article 81(1) of the Treaty.

(16)

In particular cases in which the agreements falling under
this Regulation nevertheless have effects incompatible
with Article 81(3) of the Treaty, the Commission may
withdraw the benefit of the block exemption.

(1) OJ L 336, 29.12.1999, p. 21.

The exemption provided for in paragraph 1 shall also
2.
apply to provisions contained in specialisation agreements,
which do not constitute the primary object of such agreements,
but are directly related to and necessary for their implementa-
tion, such as those concerning the assignment or use of intel-
lectual property rights.

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The first subparagraph does, however, not apply to provisions
which have the same object as the restrictions of competition
enumerated in Article 5(1).

switching costs so that it could enter the relevant market in
response to a small and permanent
increase in relative
prices (a potential competitor).

Article 2

Definitions

For the purposes of this Regulation:

1.

2.

‘Agreement’ means an agreement, a decision of an associa-
tion of undertakings or a concerted practice.

‘Participating undertakings’ means undertakings party to the
agreement and their respective connected undertakings.

3.

‘Connected undertakings’ means:

(a) undertakings in which a party to the agreement, directly

or indirectly:

(i) has the power to exercise more than half the voting

rights, or

(ii) has the power to appoint more than half

the
the supervisory board, board of
legally representing the

members of
management or bodies
undertaking, or

(iii) has the right to manage the undertaking's affairs;

(b) undertakings which directly or indirectly have, over a
party to the agreement, the rights or powers listed in (a);

(c) undertakings in which an undertaking referred to in (b)
has, directly or indirectly, the rights or powers listed in
(a);

(d) undertakings in which a party to the agreement together
with one or more of the undertakings referred to in (a),
(b) or (c), or in which two or more of the latter under-
takings, jointly have the rights or powers listed in (a);

(e) undertakings in which the rights or the powers listed in

(a) are jointly held by:

(i) parties

respective
agreement or
connected undertakings referred to in (a) to (d), or

to the

their

(ii) one or more of the parties to the agreement or one
or more of their connected undertakings referred to
in (a) to (d) and one or more third parties.

‘Product’ means a good and/or a service,
including both
intermediary goods and/or services and final goods and/or
services, with the exception of distribution and rental
services.

‘Production’ means the manufacture of goods or the provi-
sion of services and includes production by way of subcon-
tracting.

‘Relevant market’ means
and
geographic market(s) to which the products, which are the
subject matter of a specialisation agreement, belong.

relevant product

the

‘Competing undertaking’ means an undertaking that
is
active on the relevant market (an actual competitor) or an
undertaking that would, on realistic grounds, undertake the
investments or other necessary
necessary

additional

4.

5.

6.

7.

8.

‘Exclusive supply obligation’ means an obligation not to
supply a competing undertaking other than a party to the
agreement with the product to which the specialisation
agreement relates.

9.

‘Exclusive purchase obligation’ means an obligation to
purchase the product to which the specialisation agreement
relates only from the party which agrees to supply it.

Article 3

Purchasing and marketing arrangements

The exemption provided for in Article 1 shall also apply where:

(a) the parties accept an exclusive purchase and/or exclusive
supply obligation in the context of a unilateral or reciprocal
specialisation agreement or a joint production agreement,
or

(b) the parties do not sell the products which are the object of
the specialisation agreement independently but provide for
joint distribution or agree to appoint a third party distrib-
utor on an exclusive or non-exclusive basis in the context
of a joint production agreement provided that the third
party is not a competing undertaking.

Article 4

Market share threshold

The exemption provided for in Article 1 shall apply on condi-
tion that the combined market share of the participating under-
takings does not exceed 20 % of the relevant market.

Article 5

Agreements not covered by the exemption

1.
The exemption provided for in Article 1 shall not apply
to agreements which, directly or indirectly, in isolation or in
combination with other factors under the control of
the
parties, have as their object:

(a) the fixing of prices when selling the products to third

parties;

(b) the limitation of output or sales; or

(c) the allocation of markets or customers.

2.

Paragraph 1 shall not apply to:

(a) provisions on the agreed amount of products in the
context of unilateral or reciprocal specialisation agreements
or the setting of the capacity and production volume of a
production joint venture in the context of a joint produc-
tion agreement;

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(b) the setting of sales targets and the fixing of prices that a
immediate

production joint
customers in the context of point (b) of Article 3.

venture

charges

to its

Article 6

Application of the market share threshold

For the purposes of applying the market share threshold

1.
provided for in Article 4 the following rules shall apply:

(a) the market share shall be calculated on the basis of the
market sales value; if market sales value data are not avail-
able, estimates based on other reliable market information,
including market sales volumes, may be used to establish
the market share of the undertaking concerned;

(b) the market share shall be calculated on the basis of data

relating to the preceding calendar year;

(c) the market share held by the undertakings referred to in
point 3(e) of Article 2 shall be apportioned equally to each
undertaking having the rights or the powers listed in point
3(a) of Article 2.

If the market share referred to in Article 4 is initially not
2.
more than 20 % but subsequently rises above this level without
exceeding 25 %, the exemption provided for in Article 1 shall
continue to apply for a period of two consecutive calendar
years following the year in which the 20 % threshold was first
exceeded.

3.
If the market share referred to in Article 4 is initially not
more than 20 % but subsequently rises above 25 %, the exemp-
tion provided for in Article 1 shall continue to apply for one
calendar year following the year in which the level of 25 % was
first exceeded.

The benefit of paragraphs 2 and 3 may not be combined

4.
so as to exceed a period of two calendar years.

Article 7

Withdrawal

The Commission may withdraw the benefit of this Regulation,
pursuant to Article 7 of Regulation (EEC) No 2821/71, where,
either on its own initiative or at the request of a Member State
or of a natural or legal person claiming a legitimate interest, it
finds in a particular case that an agreement to which the
exemption provided for in Article 1 applies nevertheless has
effects which are incompatible with the conditions laid down
in Article 81(3) of the Treaty, and in particular where:

(a) the agreement is not yielding significant results in terms of
rationalisation or consumers are not receiving a fair share
of the resulting benefit, or

(b) the products which are the subject of the specialisation are
not subject in the common market or a substantial part
thereof to effective competition from identical products or
products considered by users to be equivalent in view of
their characteristics, price and intended use.

Article 8

Transitional period

The prohibition laid down in Article 81(1) of the Treaty shall
not apply during the period from 1 January 2001 to 30 June
2002 in respect of agreements already in force on 31
December 2000 which do not satisfy the conditions for
exemption provided for in this Regulation but which satisfy the
conditions for exemption provided for in Regulation (EEC) No
417/85.

Article 9

Period of validity

This Regulation shall enter into force on 1 January 2001.

It shall expire on 31 December 2010.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 29 November 2000.

For the Commission

Mario MONTI

Member of the Commission