COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE EVALUATION of the Horizontal Block Exemption Regulations
Date: 2021-05-06
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, control of restrictive practices, exchange of information, horizontal agreement, inter-company agreement, merger control, principle of legal certainty, public consultation, restriction on competition, single market

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   EUROPEAN COMMISSION  Brussels, 6.5.2021  SWD(2021) 104 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE EVALUATION  of the  Horizontal Block Exemption Regulations {SWD(2021) 103 final}  
 
 
1.  Background and Objectives  

The purpose of this Staff Working Document is to evaluate Commission Regulation (EU) No 
1217/2010  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  and 
Commission Regulation (EU) No 1218/2010 on the application of Article 101(3) of the Treaty 
on the Functioning of the European Union to certain categories of specialisation agreements 
(the  “HBERs”).  The  HBERs  will  expire  on  31  December  2022.  The  Commission  also 
evaluates the Guidelines on the applicability of Article 101 of the Treaty on the Functioning 
of the European Union to horizontal co-operation agreements (the “Horizontal Guidelines”).  

Article  101(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (“the  Treaty”) 
prohibits  agreements  that  restrict  competition.  The  HBERs  establish  that  R&D  and 
specialisation  agreements  fulfilling  certain  conditions  are  exempted  from  the  application  of 
Article  101(1)  of  the  Treaty  because  they  are  presumed  to  meet  the  conditions  of  the 
exemption  pursuant  to  Article  101(3)  of  the  Treaty.  The  HBERs  therefore  create  a  safe 
harbour  for  those  agreements.  For  horizontal  cooperation  agreements  not  covered  by  the 
HBERs, companies have to carry out a self-assessment of their agreement in view of Article 
101 of the Treaty. First,  to check whether their agreement restricts competition in breach of 
Article  101(1)  and  secondly,  to  determine  whether  the  pro-competitive  effects  of  their 
agreement  outweigh  its  restrictive  effects  on  competition  in  order  to  benefit  from  an 
exemption  under  Article  101(3).  The  Horizontal  Guidelines  provide  guidance  on  how  to 
interpret  and  apply  the  HBERs  and  how  to  self-assess  compliance  with  Article  101(1)  and 
Article  101(3)  of  the  Treaty,  for  their  R&D,  specialisation  and  other  types  of  horizontal 
cooperation agreements that the HBERs do not exempt. 

2.  Methodology  

The evaluation is based on data from a number of sources. The Commission gathered views 
from stakeholders via an open public consultation. National competition authorities (“NCAs”) 
provided  feedback  via  a  targeted  consultation,  based  on  their  enforcement  practice 
investigating  horizontal  cooperation  agreements  and  on  national  court  cases.  An  evaluation 
support study provided additional data, notably from small and medium sized enterprises. The 
Commission  further  benefited  from  input  gathered  through  other  initiatives,  such  as  the 
review  of  the  Vertical  Block  Exemption  Regulation  and  the  Vertical  Guidelines,  the  Green 
Deal consultation, a JRC/AGRI report on retail alliances in the agricultural and food supply 
chain and the EU Survey on Industrial R&D Investment Trends. 

3.  Findings 

Effectiveness:  Overall,  the  evaluation  indicates  that  the  HBERs  and  Horizontal  Guidelines 
meet  their  objectives.  They  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. The intervention promotes competition and offers legal certainty to companies in the 

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conception  and  implementation  of  their  horizontal  cooperation  agreements.  The  direct 
applicability  of  the  HBERs  provides  additional  legal  certainty  compared  to  a  hypothetical 
situation  in  which  only  the  Horizontal  Guidelines  would  exist.  The  Horizontal  Guidelines 
offer  legal  certainty  in  the  self-assessment  by  companies  of  their  horizontal  cooperation 
agreements,  even  beyond  those  types  of  agreements  explicitly  mentioned  in  the  specific 
chapters.  The  HBERs  and  Horizontal  Guidelines  also  meet  their  objective  of  simplifying 
administrative supervision by the Commission, the NCAs and national courts.  

The evaluation  however  identifies several  areas  where  effectiveness  can  be strengthened.  In 
particular,  there  are  indications  that  the  HBERs  and  Horizontal  Guidelines  are  not  fully 
adapted to economic and societal developments of the last ten years, such as digitisation and 
the pursuit of sustainability goals. Some of the provisions in the HBERs are considered rigid 
and  complex,  while  other  provisions  are  considered  unclear  and  difficult  to  interpret  by 
companies. The level of legal certainty provided by the Horizontal Guidelines is found to be 
uneven for different types of horizontal cooperation agreements covered.  

Efficiency:  Overall,  compliance  and  enforcement  costs  are  considered  proportionate  to  the 
benefits of having the HBERs and the Horizontal Guidelines. 

Relevance: The objectives of the HBERs and Horizontal Guidelines are considered to remain 
relevant  today.  For  companies  involved  in  R&D  and  specialisation  agreements,  the 
combination of a block exemption regulation and guidelines is deemed appropriate. However, 
recent  trends  and  developments,  in  particular  the  pursuit  of  sustainability  goals  and 
digitisation, caused that not all chapters of the Horizontal Guidelines remain equally relevant 
for stakeholders.  

Coherence: The HBERs and Horizontal Guidelines are found to be overall coherent with other 
Commission rules and guidance on the application of Article 101 of the Treaty. Nevertheless, 
the  evaluation  indicates  that  there  is  room  for  improvement,  in  particular  regarding  the 
coherent  treatment  of  horizontal  cooperation  and  vertical  agreements  and  the  alignment 
between the current texts and recent case law of the Union courts. 

EU  added  value:  Based  on  the  information  and  data  gathered,  the  HBERs  and  Horizontal 
Guidelines provide EU added value. 

4.  Conclusions  

Overall,  the  information  and  data  gathered  in  the  evaluation  suggests  that  the  HBERs, 
together  with  the  Horizontal  Guidelines,  are  useful  instruments  and  remain  relevant  for 
stakeholders.  The  evaluation  however  identifies  areas  for  possible  improvement  in 
effectiveness,  relevance  and  coherence.  The  evaluation  also  identifies  a  number  of  areas 
where the texts of the HBERs and Horizontal Guidelines are considered insufficiently clear, 
overly strict or otherwise difficult to interpret.  

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