COMMISSION STAFF WORKING DOCUMENT 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

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 6.5.2021  SWD(2021) 103 final  COMMISSION STAFF WORKING DOCUMENT  EVALUATION  of the  Horizontal Block Exemption Regulations {SWD(2021) 104 final}  
 
 
TABLE OF CONTENTS 

1. 

INTRODUCTION ................................................................................................................................ 3 

1.1. 

1.2. 

Purpose of the evaluation of the HBERs and Horizontal Guidelines ............................................ 4 

Scope of the evaluation of the HBERs and the Horizontal Guidelines ......................................... 5 

2. 

BACKGROUND TO THE INTERVENTION ..................................................................................... 6 

2.1. 

2.2. 

Overview of the competition policy framework............................................................................ 6 

Description of the intervention ...................................................................................................... 8 

2.2.1. 

2.2.2. 

2.2.3. 

The R&D BER ..................................................................................................................... 8 

The Specialisation BER ........................................................................................................ 9 

The Horizontal Guidelines.................................................................................................. 10 

2.3. 

Intervention logic and objectives ................................................................................................ 12 

2.3.1. 

2.3.2. 

General objective ................................................................................................................ 13 

Specific objectives .............................................................................................................. 13 

2.4. 

Evaluation baseline ..................................................................................................................... 15 

3. 

IMPLEMENTATION / STATE OF PLAY ........................................................................................ 15 

3.1. 

Description of the current situation ............................................................................................. 15 

3.1.1. 

3.1.2. 

3.1.3. 

Incidence of horizontal cooperation agreements ................................................................ 15 

Use of the HBERs and Horizontal Guidelines .................................................................... 17 

Major trends and developments since 2011 ........................................................................ 18 

3.2. 

3.3. 

3.3.1. 

3.3.2. 

The Commission’s enforcement action regarding horizontal cooperation agreements ............... 20 

The NCAs’ enforcement and policy action regarding horizontal cooperation agreements ......... 22 

Enforcement practice by the NCAs ........................................................................................ 22 

National guidelines by the NCAs............................................................................................ 24 

4.  METHODOLOGY .............................................................................................................................. 26 

4.1. 

4.2. 

4.3. 

4.4. 

Data gathering, methodology and analysis .................................................................................. 26 

Additional evidence gathered through other Commission initiatives .......................................... 28 

Processing and triangulating of the evidence collected ............................................................... 33 

Limitations of the analysis .......................................................................................................... 35 

4.4.1. 

4.4.2. 

4.4.3. 

Evidence on HBERs related costs and benefits .................................................................. 35 

Representativeness of stakeholder feedback ....................................................................... 36 

Limited evidence about consumer views ............................................................................ 37 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS .......................................... 37 

5.1. 

Effectiveness ............................................................................................................................... 37 

5.1.1. 

5.1.2. 

The evaluation questions .................................................................................................... 37 

The main findings regarding the effectiveness of the intervention ..................................... 39 

5.2. 

Efficiency .................................................................................................................................... 59 

5.2.1. 

The evaluation questions .................................................................................................... 59 

1 

 
 
5.2.2. 

The main findings regarding the efficiency of the intervention .......................................... 60 

5.3. 

Relevance .................................................................................................................................... 64 

5.3.1. 

5.3.2. 

The evaluation questions .................................................................................................... 64 

The main findings regarding the relevance of the intervention .......................................... 65 

5.4. 

Coherence .................................................................................................................................... 68 

5.4.1. 

5.4.2. 

The evaluation questions .................................................................................................... 68 

The main findings regarding the coherence of the intervention ......................................... 69 

5.5. 

EU added value ........................................................................................................................... 72 

5.5.1. 

5.5.2. 

The evaluation question ...................................................................................................... 72 

The main findings regarding the EU added value of the intervention ................................ 72 

6. 

CONCLUSIONS ................................................................................................................................. 73 

ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 77 

ANNEX 2: STAKEHOLDER CONSULTATION ....................................................................................... 81 

ANNEX 3: METHODS AND ANALYTICAL MODELS ........................................................................ 111 

ANNEX 4: OVERVIEW OF ISSUES IDENTIFIED DURING THE EVALUATION PROCESS........... 113 

2 

 
 
 
 
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 1  (‘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 

1   Council Regulation (EEC) No 2821/71 of 20 December 1971 on application of Article 85 (3) of the 
Treaty to categories of agreements, decisions and concerted practices, OJ L 285, 29.12.1971, p. 46 as 
amended  by  Regulation  (EEC)  No  2743/72  of  the  Council  of  19  December  1972,  OJ  L  291, 
28.12.1972, p. 144 (‘Empowerment Regulation of 1971’). 

3 

 
 
                                                           
101(3) of the Treaty on the Functioning of the European Union to certain categories of 
research and development agreements2 (‘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 agreements3 
(‘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’). 4  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.5  

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. 

2   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  categories  of  research  and 
development agreements, OJ L 335, 18.12.2010, p. 36 (‘R&D Block Exemption Regulation’ or ‘R&D 
BER’). 

3   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  categories  of  specialisation 
agreements,  OJ  L  335,  18.12.2010,  p.  43  (‘Specialisation  Block  Exemption  Regulation’  or 
‘Specialisation BER’). 

4   Communication from the Commission - Guidelines on the applicability of Article 101 of the Treaty 
on the Functioning of the European Union to horizontal co-operation agreements, OJ C11, 14.1.2011, 
p. 1; Corrigenda OJ C33, 2.2.2011, p. 20 (‘Horizontal Guidelines’). 

5   Horizontal Guidelines, paragraph 17. 

4 

 
                                                           
As required by the Commission’s Better Regulation Guidelines,6 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.7  

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.8 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 9  created  a  system  of  parallel  competences  in  which  the 
competition authorities and the courts of the Member States, alongside the Commission, 

6   Commission’s Better Regulation Guidelines, SWD(2017) 350, p. 3. 
7  

In  response  to  the  need  for  additional  guidance,  the  Commission,  the  EFTA  Surveillance  Authority 
and  the  National  Competition  Authorities  of  the  Member  States  issued  a  joint  statement  of  the 
application  of  the  antitrust  rules  during  the  current  crisis.  In  addition,  the  Commission  adopted  a 
Temporary Framework Communication setting out the main criteria that the Commission will follow 
when  assessing  cooperation  projects  aimed  at  addressing  a  shortage  of  supply  of  essential  products 
and services during the coronavirus outbreak. 

8  

The United Kingdom withdrew from the European Union as of 1 February 2020. According to Article 
92 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland 
from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 7), 
the  Commission continued to be competent to apply  Union law as regards the United  Kingdom  for 
administrative  procedures  which  were  initiated  before  the  end  of  the  transition  period  on  31 
December  2020.  Therefore,  since  the  HBERs  have  been  fully  applicable  in  the  United  Kingdom 
during  the  majority  of  the  period  under  review,  the  evaluation  includes  evidence  gathered  from 
stakeholders in the UK, in particular from the UK’s Competition and Markets Authority. 

5 

 
                                                           
have the power to apply not only Article 101(1) of the Treaty, but also Article 101(3) of 
the Treaty.10 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,11 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, 12 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.13  

9   Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1 (‘Regulation (EC) 
No 1/2003’). 

10   Regulation (EC) No 1/2003, recital 4.  
11   See e.g. Judgment of 28 June 2005, Dansk Rørindustri A/S, C-189/02 P, C-202/02 P, C-205/02 P to 
C-208/02  P  and  C-213/02  P,  EU:C:2005:408,  paragraph  211;  Judgment  of  13  December  2012, 
Expedia Inc. v Autorité de la concurrence and Others, C-226/11, EU:C:2012:795, paragraph 28.  

12   Agreement on the European Economic Area, Article 99(1) (‘EEA Agreement’). 
13   See e.g. Judgment of 18 April 1975,  Europemballage Corporation and Continental Can Company v 
Commission,  in  Case  6/72,  EU:C:1973:22,  paragraphs  25-26;  judgement  of  17  February  2011, 
TeliaSonera  Sverige,  C-52/09,  EU:C:2011:83,  paragraph  22;  judgment  of  27  March  2012,  Post 

6 

 
                                                                                                                                                                            
 
 
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.14 

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.15 

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’)16 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.17  

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 

Danmark  A/S  v  Konkurrencerådet,  C-209/10,  EU:C:2012:172, paragraphs  20-24  and judgment  of  6 
September 2017, Intel Corp. Inc. v Commission, C-413/14 P, EU:C:2017:632, paragraph 133.  
14   Commission’s  Guidelines  on  the  application  of  Article  81(3)  of  the  Treaty,  OJ  C  101,  27.4.2004, 

p. 97, paragraph 8 (‘Article 81(3) Guidelines’).  

15   Article 81(3) Guidelines, paragraph 9. 
16   See e.g. Commission guidance on restrictions of competition ‘by object’ for the purpose of defining 

which agreements may benefit from the De Minimis Notice, SWD(2014) 198 final, p. 3. 

17   Article 81(3) Guidelines, paragraph 11. 

7 

 
                                                                                                                                                                            
 
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.18  

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 
418/8519 and Regulation (EC) No 2659/2000.20 

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.21 After  the  seven  years,  the  exemption  continues  to  apply  subject  to  a  market 
share threshold of 25%.22 

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.23 

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 

18   Empowerment Regulation of 1971, recitals 3-5. 
19   Commission Regulation (EEC) No 418/85 of 19 December 1984 on the application of Article 85 (3) 

of the Treaty to categories of research and development agreements. OJ L 53, 22.2.1985, p. 5 

20   Commission Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) 
of the Treaty to categories of research and development agreements, OJ L 304, 05.12.2000, p. 7. 

21   R&D BER, article 4(1).  
22   R&D BER, article 4(3). 
23   R&D BER, article 4(2).  

8 

 
                                                           
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; 24  Regulation  (EEC)  No  3604/82; 25  Regulation  (EEC)  No  417/85; 26  and 
Regulation (EC) No. 2658/2000.27  

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 

24   Regulation (EEC) No 2779/72 of the Commission of 21 December 1972 on the application of Article 

85 (3) of the Treaty to categories of specialization agreements. OJ L 292, 29.12.1972, p. 23. 

25   Commission Regulation (EEC) No 3604/82 of 23 December 1982 on the application of Article 85 (3) 

of the Treaty to categories of specialization agreements. OJ L 376, 31.12.1982, p. 33. 

26   Regulation (EEC) No 417/85 of 19 December 1984 on the application of Article 85(3) of the Treaty 

to categories of specialization agreements, OJ L 53, 22.2.1985. 

27   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, OJ L 304, 05.12.2000, p. 3. 

9 

 
                                                           
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. 28 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).29  

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 

28   Commission  Notice  —  Guidelines  on  the  applicability  of  Article  81  of  the  EC  Treaty  to  horizontal 

cooperation agreements, OJ C 3, 6.1.2001, p. 2. 

29 

See, for instance, Horizontal Guidelines, paragraphs 128 and 205. 

10 

 
                                                           
activity  which  does  not  influence  the  relevant  parameters  of  competition. 30  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.31  

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.32  

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.33 

Concerning the chapter on standardisation agreements34, 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. 35 The  standardisation  chapter 
gives  guidance  on  how  to  ensure  that  the  process  of  selecting  industry  standards  is 

See, for instance, Horizontal Guidelines, paragraph 30. 

30 
31  Horizontal Guidelines, paragraph 32-38 and 39-47. 
32  Horizontal Guidelines, paragraph 208.  
33  Horizontal Guidelines, paragraph 240.  
34  Chapter 7 of the Horizontal Guidelines.  
35   Horizontal Guidelines, paragraphs 264-269. 

11 

 
                                                           
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’). 36 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.37  

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).38 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.39 

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.  

36   Horizontal Guidelines, paragraphs 280-286. 
37   The  Horizontal  Guidelines  include  specific  paragraphs  for  standard  terms,  for  example  paragraphs 

259, 260, 262, 270-272, 275-276, 300-307, etc.  

38  Chapter 2 of the Horizontal Guidelines.  
39 

See footnote 1 in paragraph 18 of the Horizontal Guidelines.  

12 

 
                                                           
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. 40  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.  

40   Council  Regulation  (EEC)  No  17,  First  Regulation  implementing  Articles  85  and  86  of  the  Treaty, 

OJ 13, 21.2.1962, p. 204. 

13 

 
                                                           
Figure 1 – Intervention logic for the HBERs and the Horizontal Guidelines 

NEEDS 

•To provide an analytical framework for the 
most common types of horizontal co-
operation agreement  
•To facilitate certain types of agreements 
while at the same time effectively 
protecting competition. 

OBJECTIVES 

•General objective  
•To make it easier for undertakings to cooperate in ways that are economically desirable and without adverse 
effects from the point of view of competition policy 

•Specific objectives 
•To ensure an effective protection of competition 
•To provide adequate legal certainty for undertakings regarding horizontal cooperation agreements 
•To simplify the application of competition law to horizontal cooperation agreements by public authorities  

IMPACTS 

•Increased competition in the 
internal market through pro-
competitive horizontal 
cooperation agreements for 
the benefit of European 
consumers (i.e. where 
beneficial cooperation 
agreements take place and the 
harmful ones do not happen) 

RESULTS 

•No anti-competitive 
horizontal cooperation 
agreements 
•Adequate legal certainty 
for horizontal cooperation 
agreements 
•Simplified application by 
public authorities 

OUTPUT 

•Companies self-
assessing and 
concluding or 
desisting from 
concluding 
horizontal 
cooperation 
agreements 

ACTIVITIES/INPUTS 

•The update of the 
HBERs and 
Guidelines on 
horizontal 
cooperation 
agreements in 
2010/2011 

TOOLS 

•Commission’s Council-enabled 
regulatory power to block exempt 
horizontal agreements when it 
can be assumed with sufficient 
certainty that they satisfy the 
conditions of Article 101(3) TFEU 
(i.e. where the benefits to 
consumers outweigh any harm to 
consumers). 
•Commission's general power to 
issue guidelines interpreting 
competition law. 

•Other regulatory interventions on the Single market 
•New market trends and technological developments can negatively affect the impact of the Intervention, e.g. if the definitions and 
conditions of the HBERs and of the Horizontal Guidelines are not capable of properly capturing new business models and market realities 

EXTERNAL FACTORS 

14 

 
 
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 

15 

 
 
cooperation agreements, information sharing, purchasing agreements, commercialisation 
types  of  horizontal 
agreements,  production/specialisation  agreements,  or  other 
cooperation.41  

The evaluation  support  study42 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:  

Table 1 – Summary of interviews by type of agreement and country  

Type of agreement 

Austria 

France 

Italy 

Poland 

Slovakia 

Sweden 

Grand 
Total 

Research and development 
agreements 

Production/specialisation 
agreements (any form of 
joint production 
cooperation) 

Information exchange 
practices 

Commercialisation 
agreements (cooperation in 
the selling, distribution or 
promotion of products) 

Standardisation agreements 
(agreements aimed at 
developing technical 
standards in the industry) 

Joint purchasing 
agreements 

Agreements concerning 
environmental aspects or 
other sustainability goals 

Others 

13 

11 

11 

14 

7 

11 

67 

12 

11 

15 

11 

10 

11 

70 

13 

12 

18 

10 

12 

14 

14 

13 

5 

5 

3 

15 

73 

10 

68 

8 

45 

6 

9 

8 

5 

9 

10 

10 

9 

7 

13 

15 

10 

64 

10 

10 

9 

6 

84 

7 

94 

10 

89 

6 

6 

9 

5 

57 

80 

52 

39 

482 

Grand Total 

78 

Source: Evaluation support study, Table 2. 

41   Open public consultation on the evaluation of the HBERs and the Horizontal Guidelines, November 
2019-February  2020,  questions 3.1  and  3.2  (‘Open  public  consultation’,  ‘OPC’  or  ‘public 
consultation’). 

42   VVA and London Economics, ‘Evaluation support study on the EU competition rules applicable to 
horizontal  cooperation  agreements  in  the  HBERs  and  the  Guidelines’,  Final  Report,  May  2021, 
available 
at: 
https://ec.europa.eu/competition/consultations/2019_hbers/index_en.html  (‘evaluation  support  study’ 
or ‘evaluation study’).  

Competition’s 

website 

DG 

at 

16 

 
                                                           
The evaluation support study also examined the type of agreements reported by industry: 

Table 2 – Types of agreements by industry 

Industry 

Accommodation and food service 
activities 
Agriculture 

Arts, entertainment and recreation 

Clothing, apparel & footwear 

Construction 

Consumer electronics 

Energy 

Financial and insurance activities 

Food and beverage 

Furniture 

Household appliance 

Human health 

Information and communication 

Pharmaceutical 

Professional and technical activities 

Real estate activities 

Telecommunications 

Transportation and storage 

Other industry, please specify 

n
o
i
t
a
s
i
l
a
i
c
e
p
S

0 

18 

0 

5 

8 

4 

5 

0 

2 

3 

7 

3 

0 

5 

2 

0 

2 

0 

6 

D
&
R

0 

7 

0 

2 

3 

1 

10 

1 

3 

0 

3 

10 

5 

11 

3 

0 

1 

0 

7 

n
o
i
t
a
s
i
l
a
i
c
r
e
m
m
o
C

3 

9 

2 

9 

1 

8 

3 

1 

4 

7 

8 

0 

4 

1 

1 

0 

0 

4 

3 

n
o
i
t
a
m
r
o
f
n
I

e
g
n
a
h
c
x
e

3 

5 

2 

13 

4 

4 

4 

0 

5 

4 

0 

4 

4 

4 

4 

5 

2 

4 

2 

g
n
i
s
a
h
c
r
u
P
t
n
i
o
J

1 

4 

3 

9 

3 

3 

0 

0 

14 

2 

9 

3 

1 

4 

4 

3 

0 

0 

1 

n
o
i
t
a
s
i
d
r
a
d
n
a
t
S

5 

5 

0 

1 

4 

2 

4 

0 

3 

2 

5 

1 

1 

1 

4 

2 

0 

5 

0 

y
t
i
l
i
b
a
n
i
a
t
s
u
S

3 

11 

0 

6 

5 

2 

8 

0 

3 

2 

2 

1 

2 

3 

0 

0 

2 

2 

0 

-
n
o
n

,
s
r
e
h
t
O

d
e
r
e
v
o
c

1 

2 

2 

3 

2 

1 

5 

0 

2 

1 

4 

0 

0 

3 

5 

0 

1 

3 

4 

Grand Total 
Source: Evaluation support study, Table 7. 

67 

70 

68 

73 

64 

45 

52 

39 

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).43  

43   Open public consultation, questions 3.6 to 3.8. 

17 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Table 3 – How often respondents consult the different texts for guidance 44 

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 
the  Commission’s  Horizontal 
certain  extent  complement  and/or  further  clarify 
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 

44   The factual summary of the contributions received in the context of the open public consultation on 
at 

the 
https://ec.europa.eu/competition/consultations/2019_hbers/HBERs_consultation_summary.pdf 
(‘Factual summary of the open public consultation’). 

the  Horizontal  Block  Exemption  Regulations, 

evaluation 

available 

of 

18 

 
 
                                                           
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.45 

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 
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. 

in 

45   The clarity to determine when a horizontal cooperation agreements is compatible with EU competition 
rules is also relevant in the context of the digitisation of the economy and the increasing dependence 
on big data. 

19 

 
                                                           
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.46  

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.47 

In  2010,  with  the  Oneworld  decision, 48  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 

46   Annual report on Competition Policy (2019), SWD(2020) 126 final, p. 4. 
47   Previous  Commission decisions concerning  horizontal cooperation agreements include for example, 
Commission  decision  of  14.10.2009,  Ship  classification,  AT.39416,  as  well  as  the  IPCom 
investigation (2009). 

48   Commission  decision  of  14.7.2010,  British  Airways/American  Airlines/Iberia,  AT.39596  (the 

‘Oneworld’ decision). 

20 

 
                                                           
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 49 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,50 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.51  

49   Commission Decision of 23.5.2013, Continental/United/Lufthansa/Air Canada, AT.39595. 
50   Case AT.39822 – Refrigerants. The Commission decided to close proceedings on 25.10. 2017. 
51   Another example can be found in Case AT.39860 – Brussels Airlines/TAP Air Portugal. In 2018, the 
Commission closed its investigation into the codeshare agreement between Brussels Airlines and TAP 
Air  Portugal  on  the  Brussels-Lisbon  route.  The  Commission  had  raised  preliminary  concerns  in  a 
Statement  of  Objections  (2016)  that  the  codeshare  cooperation  on  passenger  services  may  have 
restricted  competition  between  the  parties.  However,  based  on  a  thorough  analysis  of  all  relevant 
evidence,  including  information  received  from  the  two  airlines,  the  Commission  concluded  that  the 
evidence  collected  was  not  sufficient  to  confirm  its  initial  concerns  and  decided  to  close  its 
investigation. Throughout the investigation, the  Commission emphasised that its concerns related to 
specific features of this particular codeshare agreement, rather than to codeshares in general.  

21 

 
                                                           
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 2021.52  

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.53  

The  most  common  type  of  horizontal  cooperation  agreement  subject  to  NCA 
investigations  were  commercialisation  agreements  (i.e.  50  out  of  174  investigated 
and 
agreements), 
specialisation/production  agreements  (31).54 Least  common  were  R&D  agreements  and 
agreements  labelled  as  environmental/sustainability  agreements,  with  six  and  five 
occurrences respectively (see Table 4).  

information 

agreements 

exchange 

followed 

(36) 

by 

52   Evaluation Study, see footnote 41 above. 
53   These  countries  are:  Austria,  Belgium,  Croatia,  Cyprus,  Czech  Republic,  Estonia,  Lithuania, 

Luxembourg, Malta, Poland, Slovakia. 
54   See Evaluation Study, Table 12, p. 47. 

22 

 
 
 
 
 
                                                           
Table  4  –  Horizontal  cooperation  agreements  by  Member  State  and  type  of 
agreement 

Number of horizontal cooperation agreements 

/
n
o
i
t
a
s
i
l
a
i
c
e
p
S

n
o
i
t
c
u
d
o
r
p

s
t
n
e
m
e
e
r
g
a

n
o
i
t
a
m
r
o
f
n
I

e
g
n
a
h
c
x
e

s
t
n
e
m
e
e
r
g
a

g
n
i
s
a
h
c
r
u
P

s
t
n
e
m
e
e
r
g
a

n
o
i
t
a
s
i
d
r
a
d
n
a
t
S

s
t
n
e
m
e
e
r
g
a

/

l
a
t
n
e
m
n
o
r
i
v
n
E

y
t
i
l
i
b
a
n
i
a
t
s
u
s

s
t
n
e
m
e
e
r
g
a

d
e
r
e
v
o
c
-
n
o
n

,
s
r
e
h
t
O

f
o

r
e
b
m
u
n
l
a
t
o
T

s
t
n
e
m
e
e
r
g
a

s
t
n
e
m
e
e
r
g
a
D
&
R

4 

1 

11 

2 

1 

1 

3 

1 

3 

4 

Country 

Number 
of NCA 
investiga
tions 

BG 

DE 

DK 

EL 

ES 

FI 

FR 

HU 

IT 

LT 

LV 

NL 

NO 

PT 

RO 

SE 

SI 

UK 

2 

40 

18 

3 

8 

5 

4 

1 

6 

1 

2 

12 

3 

1 

1 

14 

1 

4 

n
o
i
t
a
s
i
l
a
i
c
r
e
m
m
o
C

s
t
n
e
m
e
e
r
g
a

18 

8 

2 

4 

3 

4 

2 

2 

1 

5 

10 

4 

2 

3 

1 

1 

3 

2 

1 

9 

5 

2 

1 

1 

3 

1 

1 

2 

2 

5 

1 

1 

1 

1 

3 

2 

2 

58 

25 

3 

10 

6 

4 

1 

11 

1 

2 

14 

5 

1 

1 

24 

1 

5 

174 

2 

1 

1 

2 

1 

1 

8 

1 

5 

7 

Total 

126 

6 

33 

Source: Evaluation support study, Table 12.  

3 

36 

1 

50 

1 

12 

5 

24 

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. 

23 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table  5  provides  an  overview  of  the  outcome  of  the  NCA  investigations. 55  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.  

Table 5 – Horizontal cooperation agreement investigations by type of outcome  

l
a
t
o
T

39 

12 

20 

12 

26 

10 

4 

3 

Type of agreement 

Multiple agreements56 

Specialisation agreements 

Information exchange agreements 

Purchasing agreements 

Commercialisation agreements 

Standardisation agreements 

Environmental agreements 

Others, non-covered 

Total 

d
e
u
n
i
t
n
o
c
s
i
D

s
g
n
i
d
e
e
c
o
r
p

11 

4 

7 

4 

10 

4 

1 

41 

f
o
n
o
i
t
c
e
j
e
R

t
n
i
a
l
p
m
o
c

n
o
i
t
i
b
i
h
o
r
P

n
o
i
s
i
c
e
d

n
e
m

t
i

m
m
o
C

n
o
i
s
i
c
e
d
t

e
m
o
c
t
u
o

r
e
h
t
O

9 

3 

1 

6 

1 

5 

2 

5 

4 

6 

1 

3 

5 

3 

1 

2 

2 

1 

14 

9 

7 

2 

4 

2 

2 

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  Danish57 and  Norwegian58 guidelines),  SMEs  (e.g.  the  German59 

55   Ongoing proceedings were also counted under ‘other’ outcomes. 
56   A  category  of  agreements  including  the  elements  of  more  than  one  type  of  horizontal  cooperation 

agreement under the Horizontal Guidelines.  

57   Danish  competition  and  consumer  authority,  When  companies  bid  jointly  -  guidelines  for  joint 
at 

bidding 
https://www.en.kfst.dk/media/t1lmhwkt/20201211-guidelines-on-joint-bidding.pdf. 

competition 

September 

available 

under 

2020, 

law, 

58   Norwegian  competition  authority,  Veiledning  –  prosjektsamarbeid,  February  2014,  available  (in 

Norwegian) at: https://konkurransetilsynet.no/decisions/veiledning-prosjektsamarbeid/. 

24 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
guidelines and the Dutch60 guidelines on tariff agreements for self-employed persons in 
collective labour agreements), and trade associations (e.g. the Belgian61 and the Dutch62 
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.63 

The  UK  authorities  adopted  guidance  on  the  public  transport  ticketing  schemes  block 
exemption64, guidance on cooperation between competitors on the smart meter roll-out.65 
Both  the  Luxembourg66 and  UK67 NCA  also  issued  specific  guidance  in  response  to 
COVID-19. 

59   German  competition  authority,  Information  leaflet  of  the  Bundeskartellamt  on  the  possibilities  of 
at: 

cooperation 
https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Merkblaetter/Leaflet%20-
%20Cooperation%20for%20SMUs.html?nn=3591462. 

enterprises,  March 

and  medium-sized 

available 

2007; 

small 

for 

60   The Netherlands Authority for Consumers and Markets, Leidraad Tariefafspraken zzp’ers, July 2020, 
at: 

available 
https://www.acm.nl/sites/default/files/old_publication/publicaties/16978_leidraad-tariefafspraken-
voor-zzp-ers-in-cao-s-2017-02-24.pdf. 
61   Belgian  competition  authority,  Gids 

Dutch) 

(in 

-  Uitwisseling  van 
available 

(in 

informatie 
at: 

Dutch) 

in  het  kader  van 
https://www.bma-

ondernemingsverenigingen, 
abc.be/sites/default/files/content/download/files/20191001_gids_-
_uitwisseling_van_informatie_1.pdf.  

2019; 

62   The Netherlands Authority for Consumers and Markets, Leidraad Samenwerking tussen concurrenten, 
February  2019,  available  (in  English)  at  https://www.acm.nl/sites/default/files/documents/2020-
09/guidelines-regarding-arrangements-between-competitors.pdf. 

63   Latvian  competition  authority,  Noteikumi  par  atsevišķu  horizontālo  sadarbības  vienošanos 
nepakļaušanu  Konkurences  likuma  11.panta  pirmajā  daļā  noteiktajam  vienošanās  aizliegumam, 
September  2008,  available  (in  Latvian)  at:  https://likumi.lv/ta/id/181856-noteikumi-par-atsevisku-
horizontalo-sadarbibas-vienosanos-nepaklausanu-konkurences-likuma-11-panta-pirmaja-dala-
noteiktajam 

64   UK  competition  and  markets  authority,  Guidance  on  the  public  transport  ticketing  schemes  block 

exemption, September 2016, available at: https://rb.gy/lyhey6. 

65   UK  ofgem,  Guidelines  Guidance  note  on  cooperation  between  competitors  on  the  smart  meter  roll-
at: 
2016 

out, 
https://www.ofgem.gov.uk/system/files/docs/2016/05/guidance_note_on_cooperation_-
_smart_meter_rollout_corrected_again.pdf. 

available 

May 

66   Luxembourg  competition  council,  Covid-19:  Document  d'orientation  à  destination  des  entreprises, 
April  2020,  available  (in  French)  at:  https://concurrence.public.lu/fr/actualites/2020/document-
orientation-entreprises-coronavirus.html. 

67   UK  competition  and  markets  authority,  CMA  approach  to  business  cooperation  in  response  to 
at: 

coronavirus 
March 
https://www.gov.uk/government/publications/cma-approach-to-business-cooperation-in-response-to-
covid-19. 

(COVID-19), 

available 

2020, 

25 

 
                                                                                                                                                                            
 
Finally,  the  Dutch  NCA  has  published  draft  guidelines  on  sustainability  agreements.68 
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.69 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 70  and  the  dedicated  HBERs  review  webpage  on  DG 
Competition's website on 7 April 2020.71 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 

68   The  Netherlands  Authority  for  Consumers  and  Markets,  Guidelines  on  Sustainability  agreements, 
July 2020, available athttps://www.acm.nl/en/publications/draft-guidelines-sustainability-agreements. 
69   Roadmap  on  the  Evaluation  of  the  two  Block  Exemption  Regulations  for  horizontal  co-operation 
agreements,  5  September  2019  -  3  October  2019,  available  at  DG  Competition’s  website: 
https://ec.europa.eu/competition/consultations/2019_hbers/index_en.html 

70   Open 

public 

consultation, 

available 

at 

DG 

Competition’s 

website: 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/11886-Evaluation-of-EU-
competition-rules-on-horizontal-agreements/public-consultation. 
71   Factual summary of the open public consultation, see footnote 43 above. 

26 

 
 
                                                           
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 2020.72 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 2021.73  

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 

72   Summary  of  the  contributions  of  NCAs  to  the  evaluation  of  the  HBERs  and  the  Horizontal 
website: 
the 

Guidelines, 
https://ec.europa.eu/competition/consultations/2019_hbers/NCA_summary.pdf 
contributions of NCAs’).  

(‘Summary  of 

Competition’s 

available 

DG 

at 

73   Evaluation study, see footnote 42 above. 

27 

 
                                                           
on  DG  Competition's  website, 74 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’), 75  (ii)  the  Special  Advisers’  report  on 
competition policy for the digital era (the ‘Special Advisers’ report’),76 (iii) the 2020 Call 
for  contributions  on  Competition  Policy  and  the  Green  Deal,77 (iv)  the  Joint  Research 
Centre  (‘JRC’)  Report  on  Retail  Alliances  in  the  Supply  Chain  (the  ‘JRC  Report  on 
Retail  Alliances’  or  ‘JRC  Report’), 78  (v)  the  2020  EU  Survey  on  Industrial  R&D 
Investment Trends,79 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 
2022.80 

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.  

74   Review  of  the  two  Horizontal  Block  Exemption  Regulations,  Results  of  the  public  consultation, 
: 

available 
https://ec.europa.eu/competition/consultations/2019_hbers/index_en.html.  

Commission’s 

website 

at 

75   Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of 
the  Treaty  on  the  Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and 
concerted practices. OJ L 102, 23.4.2010, p. 1; Commission’s Guidelines on Vertical Restraints, OJ C 
130, 19.5.2010, p. 1 (‘Guidelines on Vertical Restraints’). These rules are currently under review. For 
further 
at: 
Commission’s 
https://ec.europa.eu/competition/consultations/2018_vber/index_en.html. 

website 

details, 

please 

see 

76   Crémer, J., de Montjoye, Y-A. and Schweitzer, H., Competition policy for the digital era, May 2019, 

available at https://ec.europa.eu/competition/information/digitisation_2018/report_en.html. 

77   Competition  Policy  supporting  the  Green  Deal,  Call  for  contributions,  October  2020,  available  at: 

https://ec.europa.eu/competition/information/green_deal/call_for_contributions_en.pdf. 

78   Colen, L., Bouamra-Mechemache, Z., Daskalova, V. and Nes, K., Retail alliances in the agricultural 
and  food  supply  chain,  EUR  30206  EN,  Publications  Office  of  the  European  Union,  Luxembourg, 
2020, ISBN 978-92-76-18585-7 (online), doi:10.2760/33720 (online), JRC120271. 

79   European Commission, Joint Research Centre, ‘The 2020 EU Survey on Industrial R&D Investment 
https://iri.jrc.ec.europa.eu/sites/default/files/2020-

Trends’ 
12/2020%20RD%20Survey%20online%20final.pdf (the ‘Survey on EU R&D’ or the ‘Survey’).  

available 

(2020), 

at: 

80   See footnote 75 above. 

28 

 
                                                           
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.81  

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.  

81   Commission’s Evaluation of the Vertical Block Exemption Regulation, SWD(2020) 173 final, p. 73, 

available at: https://ec.europa.eu/competition/consultations/2018_vber/staff_working_document.pdf  

29 

 
                                                           
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,82 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.83 

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.84 
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 
Scoreboard85 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).  

82   European  Parliament  legislative  resolution  of  12  March  2019  on  the  proposal  for  a  directive  of  the 
European  Parliament  and  of  the  Council  on  unfair  trading  practices  in  business-to-business 
relationships  in  the  food  supply  chain,  Annex  to  the  legislative  resolution  (COM(2018)0173  –  C8-
0139/2018  –  2018/0082(COD),  available  at:  http://www.europarl.europa.eu/doceo/document/TA-8-
2019-0152_EN.html 

83  

JRC Report, available at: https://ec.europa.eu/jrc/en/publication/eur-scientific-and-technical-research-
reports/retail-alliances-agricultural-and-food-supply-chain  

84   Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair 
trading practices in business-to-business relationships in the agricultural and food supply chain, OJ L 
111, 25.4.2019, p. 59. 

85   The 

2019 

is 
R&D 
https://iri.jrc.ec.europa.eu/scoreboard/2019-eu-industrial-rd-investment-scoreboard. 

Scoreboard 

Investment 

Industrial 

EU 

available 

at 

30 

 
                                                           
Figure 2 – R&D collaboration characteristics  

Support from: 

Local, regional or national programme: 28% 

EU programmes: 18% 

Foreign support or private donations: 3% 

No support: 50% 

Main R&D location: 63% 

Other EU MS: 20% 

European non-EU: 2% 

US: 6% 

China: 2% 

Japan: 1% 

India: 2% 

Other countries: 4% 

Micro firms: 6% 

Small firms: 24% 

Medium-sized firms: 28% 

Large firms: 42% 

Suppliers: 33% 

Clients: 22% 

Competitors: 11% 

R&D specialised firms: 
34% 

A single partner: 57% 

A consortium: 43% 

In-house only: 75% 
In collaboration: 17% 
Outsourced: 8% 

Strategic collaboration: 36% 

Individual project basis: 64% 

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:  

31 

 
 
  The  general  framework  of  European  standardisation  policy  which  includes 
Regulation (EU) No 1025/201286 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; 87  

  The judgment of the Court of Justice of the European Union (‘CJEU’) of 16 July 

2015, Huawei v. ZTE;88 

  The  Communication  of  2017  entitled  ‘Setting  out  the  EU  approach  to  Standard 
Essential  Patents’  the  European  Commission  endorsed  by  Council  Conclusions 
6681/18;89 

  The  Commission’s  Action  Plan  on  Intellectual  Property  (‘IP  Action  Plan’)  to 

support the EU’s recovery and resilience adopted on 25 November 2020;90 

  Several judgments of national courts.91 

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 

86   Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on 

European standardisation, OJ L 316, 14.11.2012, p. 12. 

87   Commission’s  Guidelines  on  the  application  of  Article  101  of  the Treaty  on  the  Functioning  of  the 
European  Union  to  technology  transfer  agreements,  OJ  C  89,  28.3.2014,  p.  3  (‘Guidelines  on 
Technology Transfer Agreements’). See also Commission Regulation (EU) No 316/2014 of 21 March 
2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to 
categories of technology transfer agreements (‘TTBER’).  

88  

Judgment  of  16  July  2015,  Huawei  v.  ZTE,  C-170/13,  EU:C:2015:477.  It  is  noted  that  there  is  a 
pending  request  from  the  Düsseldorf  Regional  Court  for  a  preliminary  ruling  from  the  CJEU  on 
questions concerning the interpretation of Article 102 TFEU in relation to SEPs.  

89   Commission’s  Communication,  Setting  out  the  EU  approach  to  Standard  Essential  Patents, 
COM(2017)  712  final;  Council  conclusions  6681/18  on  the  enforcement  of  Intellectual  Property 
Rights, available at: http://data.consilium.europa.eu/doc/document/ST-6681-2018-INIT/en/pdf  
90   Commission’s  Communication,  Making  the  most  of  the  EU’s  innovative  potential:  An  intellectual 

property action plan to support the EU’s recovery and resilience, COM/2020/760 final. 

91   See for example Judgment of the German Federal Court of Justice (‘Bundesgerichtshof – BGH’) of 5 

May 2020, Sisvel v. Haier, Case No. KZR 36/17. 

32 

 
                                                           
Patents (‘SEPs Expert Group’), a Commission Expert Group appointed in 2018,92 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. 

92   Commission’s  Group  of  Experts  on  Licensing  and  Valuation  of  Standard  Essential  Patents  – 
at 

Contributions 
https://ec.europa.eu/docsroom/documents/44733 (‘SEPs Expert Group’). 

the  Debate  on  SEPs 

January  2021, 

(E03600),  24 

available 

to 

33 

 
 
 
                                                           
Sources 

Criteria 

Effectiveness 

Efficiency 

Relevance 

Coherence 

EU added value 

Public consultation 
(including spontaneous 
submissions) 

Targeted NCA 
consultation 

Evaluation 
Study 

Other 
Commission 
initiatives 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

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 

34 

 
 
 
 
 
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  Horizontal  Guidelines  (see  section  4.4.1  below),  a  certain 

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 
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;93 whether (ii) 
the cost of ensuring compliance would increase or decrease in the absence of the HBERs 
if only the Horizontal Guidelines applied,94 or whether (iii) costs are proportionate to the 

93   Open public consultation, question 5.5. In response to this question, 67 stakeholders replied ‘I do not 
know’,  while  10  stakeholders  were  able  to  indicate  whether  costs  had  increased  (7  stakeholders)  or 
decreased (3 stakeholders).  

94   Open public consultation, questions 5.8 and 5.11. In response to question 5.8 concerning R&D BER 
and  question  5.11  concerning  the  Specialisation  BER,  50  stakeholders  and  43  stakeholders 

35 

 
                                                           
 
benefits  reported  by  the  HBERs  and  the  Horizontal  Guidelines.95 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.96  

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.  

(respectively) replied ‘I do not know’ while, for both questions, less than 30 stakeholders were able to 
indicate whether costs had increased.  

95   Open  public  consultation,  questions  5.15,  5.17  and  5.19.  In  response  to  these  questions  concerning 
costs v. benefits of the R&D BER and Specialisation BER,  more than 57 stakeholders replied ‘I do 
not know’  while, for both questions, less  than 20 stakeholders  were able to indicate  whether or not 
costs  were  proportionate  to  benefits.  With  regard  to  the  Horizontal  Guidelines  (question  5.19),  46 
stakeholders replied ‘I do not know’ while 31 stakeholders were able to indicate whether or not costs 
were proportionate to benefits. 

96   NCAs  targeted  consultation,  section  5.  This  was  the  case  of  the  large  majority  (18  or  more)  of  the 
NCAs that replied to the targeted consultation, with only one exception. 12 NCAs considered that the 
costs of applying the Horizontal Guidelines is proportionate to the benefits, one NCA considered that 
they were not proportionate and 11 NCAs replied ‘I do not know’. 

36 

 
                                                                                                                                                                            
 
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.  

37 

 
 
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 

38 

 
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.  

39 

 
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 

40 

 
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, 97  across  all  stakeholders 
groups,98 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 

97   Throughout section 5, references to the views of the respondents to the public consultation should be 
understood  as  including  only  those  respondents  who  expressed  a  view  on  the  issue  at  hand,  thus 
excluding  those  who  did  not  reply,  indicated  ‘I  do  not  know’  or  indicated  that  the  issue  was  not 
applicable to them. 

98   Throughout section 5, where no qualification is  made  regarding the views of the respondents to the 
public consultation, this should be understood as meaning that the reported view is broadly shared by 
all stakeholder groups that participated in the public consultation across the different sectors. Where a 
particular view  was shared primarily by one or  more  different stakeholder groups among those that 
participated in the public consultation this is reported. 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 
Commission services disregard diverging views, both within the same or across different stakeholder 
groups/sectors. Annex 4 reports in more detail the stakeholder views per area, regardless of whether 
these views were shared by a majority or minority of stakeholders. 

41 

 
                                                           
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. 

42 

 
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 consultation99 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.  

99   The  typology  of  respondents  that  contributed  to  the  public  consultation  is  described  in  section  4.1 

above. 

43 

 
                                                           
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  study100 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 

100   The  typology  of  stakeholders  that  participated  in  the  evaluation  study  is  described  in  section  4.1 

above. 

44 

 
                                                           
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 increase legal certainty.  

The evidence gathered in the evaluation suggests that the R&D BER and Chapter 3 of the 
Horizontal Guidelines are overall useful instruments that increase legal certainty but do 
not fully meet their objective regarding the provision of legal certainty. 

The majority of the respondents to the public consultation across stakeholder groups101 
indicated that the R&D BER and Chapter 3 of the Horizontal Guidelines did not provide 
sufficient legal certainty allowing them to conclude horizontal R&D agreements without 
the risk of infringing competition law. The results of the public consultation highlighted 
the existence of a number of issues affecting the effectiveness of the rules.  

First,  the  public  consultation  queried  about  the  list  of  definitions  that  applies  to  R&D 
agreements that can benefit from an exemption under the R&D BER. Respondents, such 
as  business  associations,  companies  and  law  firms,  were  evenly  split  on  whether  these 
definitions  allowed  or  not  to  identify  horizontal  R&D  agreements  that  did  not  violate 

101   The  typology  of  respondents  that  contributed  to  the  public  consultation  is  described  in  section  4.1 

above. 

45 

 
                                                           
Article  101  of  the  Treaty.  Among  the  negative  remarks,  respondents  pointed  out  that 
some  definitions  and  concepts  of  the  R&D  BER  and  Chapter  3  of  the  Horizontal 
Guidelines were too complex, which might have led to an overly cautious interpretation 
of the rules. Hence, further clarification and guidance would be required to increase legal 
certainty,  such  as  on  the  notions  of  ‘joint  exploitation’,  ‘field  of  use’,  ‘R&D  poles’  or 
‘competition in innovation’.  

Second,  respondents  (e.g.  companies  and  some  law  firms)  also  considered  that  the 
conditions for exemption regarding access to the final results of the R&D, access to pre-
existing know-how and joint exploitation (Article  3 of the R&D BER) did not allow to 
correctly  identify  R&D  agreements  compliant  with  Article  101  of  the  Treaty.  Several 
aspects  were  considered  unclear,  namely  the  requirement  of  ‘full  access’  rights,  the 
access  to  ‘pre-existing  know-how’  and  the  notion  and  calculation  of  ‘compensation’ 
among the parties to the agreement. 

Third,  the  market  share  threshold  of  25%  for  competing  undertaking,  the  absence  of  a 
market  share  threshold  for  non-competing  undertakings  and  the  application  of  these 
thresholds  under  Articles  4  and  7  of  the  R&D  BER  were  considered  challenging. 
Respondents  (including  business  and  legal  associations,  companies  and  several  law 
firms)  considered  that  they  did  not  allow  to  correctly  identify  compliant  R&D 
agreements  and  pointed,  among  other  issues,  to  the  challenges  that  the  calculation  of 
market shares presents as well as the coherence/alignment with other competition rules of 
the  threshold  of  the  R&D  BER  and  its  application.  Some  of  these  respondents  also 
considered that the 25% market share threshold should be increased.  

Fourth,  the  majority  of  respondents  to  the  public  consultation  that  expressed  a  view 
considered  that  the  other  provisions  of  the  R&D BER  provided  legal  certainty,  namely 
the  list  of  hardcore  restrictions  (Article  5  of  the  R&D  BER),  the  list  of  obligations 
included in horizontal R&D agreement to which the exemption does not apply (‘excluded 
restrictions’) (Article 6 of the R&D BER) and, to a lesser extent, the duration (7 years) of 
the  exemption  applicable  to  R&D  agreements  between  not  competing  undertakings 
where  the  results  were  jointly  exploited.  Respondents  considered  that  these  provisions 
contributed  to  identify  horizontal  R&D  agreements  compliant  with  Article  101  of  the 
Treaty. 

Last,  some  respondents  across  different  stakeholder  groups  (such  as  companies  and 
business  associations)  considered  that  ‘paid-for’  R&D  cooperation  should  be  removed 
from the R&D BER and assessed under different regulations such as the TTBER; while 
other respondents request the inclusion of up to date practical examples and references to 
recent case law to increase legal certainty.  

Despite the issues identified, all the respondents to the public consultation that expressed 
a view considered that the R&D BER increased legal certainty compared with a situation 
where  only  the  Horizontal  Guidelines  existed  and  applied.  The  reason  for  this  was 
notably  the  binding  nature  of  the  R&D  BER.  The  BERs  bind  national  courts  and 
competition  authorities  of  the  Member  States,  while  the  Horizontal  Guidelines  do  not. 
Also, the safe harbours provided by the R&D BER offer more legal certainty than a self-
assessment conducted solely on the basis of the Horizontal Guidelines. 

46 

 
In contrast with some of the results of the public consultation, the majority of the NCAs 
noted that the R&D BER provides sufficient legal certainty and simplifies the application 
of competition rules at national level compared to a situation where only the Horizontal 
Guidelines existed and applied. According to  these NCAs, the R&D  BER offers  useful 
guidance  clearly  establishing  under  which  conditions  horizontal  R&D  agreement  are 
exempted  such  as  market  share  threshold  and  hardcore  restrictions,  which  help 
companies identify the agreements that are exempted from Article 101 of the Treaty.  

A few NCAs,  on the other hand, agreed with the respondents to the public consultation 
that  there  are  certain  areas  where  guidance  is  lacking,  namely  clarification  of  certain 
definitions  (e.g.  R&D  poles)  and  an  update  of  the  rules  are  necessary  to  reflect  recent 
market developments and case law on horizontal cooperation agreements. Furthermore, a 
few  NCAs  also  considered  that  a  uniform  interpretation  of  the  provisions  of  the 
Horizontal Guidelines might not always be achieved due to their non-binding nature vis-
à-vis NCAs, Union and national courts.  

The main findings of the evaluation study102 support that the R&D BER and Chapter 3 
of the Horizontal Guidelines provide an adequate degree of legal certainty. In particular, 
stakeholders  (mainly  SMEs)  identified  as  key  strengths  of  the  R&D  BER  that  it 
facilitates  self-assessment,  encourages  a  consistent  application  of  EU  competition  rules 
and reduces the need for external legal support. 

However, respondents to the evaluation study also considered that there were areas where 
the  guidance  provided  was  insufficient.  Respondents  pointed  in  this  regard  to  (i)  the 
definitions that apply to R&D agreements that can benefit from the exemptions, (ii) the 
conditions for exemption, (iii) the definition of the relevant market, and (iv) the market 
share thresholds and the calculation of the market shares. 

First,  respondents  to  the  evaluation  study  highlighted  that  the  technicalities  and 
complexity of the R&D BER may lead to misunderstandings and misinterpretations.  

Second,  some  large  companies  perceive  the  requirements  for  access  to  intellectual 
property under Article 3 of the R&D BER as strict. They also consider that the conditions 
for  joint  exploitation  lack  clarity  in  order  to  meet  the  requirements  of  the  exemption 
under the R&D BER. 

Third,  the  definition  of  the  relevant  market  in  R&D  agreements  presents  specific 
challenges.  Large  companies  mentioned  that  it  is  quite  hard  to  define  product  and 
technology markets due to the nature of these agreements, which often ‘create’ a product 
or  a  market  that  did  not  exist  at  the  time  of  the  R&D  agreement.  According  to  the 
stakeholders  participating  in  the  in-depth  (or  semi-structured)  interviews  and  having 
R&D agreements in  place, the R&D BER  was written with  relatively stable markets  in 

102   As indicated in Section 4.1, the findings of the evaluation study take into account the responses of the 
NCAs  to  the  targeted  consultation  organised  by  the  Commission  services  that  were  separately 
addressed in the previous paragraphs.  

47 

 
                                                           
mind,  while  in  practice  the  research  activity  covered  by  such  agreements  is  more 
dynamic. 

Fourth,  respondents  to  the  evaluation  study  also  mentioned  uncertainty  relating  to  the 
market  share  thresholds  in  the  R&D  BER.  In  particular,  the  analysis  of  whether  the 
parties’ market shares meet the prescribed thresholds is rather complex, burdensome and 
subject  to  uncertainty.  This  analysis  seems  particularly  difficult  for  R&D  agreements 
concluded  in  high-technology  markets.  The  dynamic  nature  of  these  markets  poses  an 
additional challenge to identify the (actual and potential) market players and the size of 
the market.  

Moreover, the market definition and the calculation of market shares was also considered 
difficult, especially for SMEs, mostly due to the administrative burden and to the lack of 
technical skills.  

Finally, a large majority of the respondents to the Survey on EU R&D (i.e. top EU and 
UK  R&D  investors) 103  indicated  that  the  rules  of  the  R&D  BER  were  clear  and 
comprehensive. Moreover, 91% of the respondents indicated that the given examples of 
R&D cooperation and business models were adequate. 

However,  several  respondents  considered  that  there  are  certain  provisions  that  could 
hinder R&D collaboration, namely (i) the definition of ‘paid-for’ R&D cooperation and 
the  definitions  in  Chapter  3  of  the  Horizontal  Guidelines,  which  were  considered  too 
specialised and rather obscure due to the use of jargon that is too specialized; as well as 
(ii) the requirement of full access to the joint final results and to the pre-existing know-
how.  In  addition,  respondents  also  requested  that  non-horizontal  R&D  cooperation 
agreements be generally exempted.  

In  conclusion,  the  evidence  gathered  from  the  sources  indicated  above  suggests  that, 
despite the existence of several issues, stakeholders seem to largely support that the R&D 
BER increases legal certainty as compared to a situation without the BER and where only 
the Horizontal Guidelines would apply. 

Specialisation agreements 

The evidence gathered in the evaluation  suggests that the Specialisation BER, together 
with  Chapter  4  of  the  Horizontal  Guidelines  on  production  agreements,  are  overall 
useful  instruments  that  increase  legal  certainty  as  compared  to  a  situation  without  the 
Specialisation BER.  

Nevertheless, the evaluation identified certain aspects that, according to the respondents 
to  the  public  consultation  and  the  evaluation  study,  as  well  as  a  few  NCAs,  could  be 
improved,  namely  the  market  share  threshold,  its  application  and  calculation,  the 
potentially  limited  scope  of  the  Specialisation  BER  and  the  lack  clarity  of  some 

103   The stakeholders that participated in the Survey are described in section 4.2 above. 

48 

 
                                                           
definitions  and  the  conditions  necessary  to  benefit  from  an  exemption  under  the 
Specialisation BER. 

The  evaluation  also  identified  the  need  to  provide  more  guidance  on  the  relationship 
between the Specialisation BER and other EU competition law regulations (such as the 
Merger  Regulation,  the  Technology  Transfer  Block  Exemption  Regulation  and  the 
VBER). 

The  evidence  gathered  in  the  evaluation  suggests  that  the  Specialisation  BER  and 
Chapter 4 of the Horizontal Guidelines are overall useful instruments that increase legal 
certainty but do not fully meet their objective regarding the provision of legal certainty. 

The  respondents  to  the  public  consultation  (e.g.  business  associations,  companies  and 
law  firms)  are  almost  evenly  split  between  those  that  consider  that  the  Specialisation 
BER  and  Chapter  4  of  the  Horizontal  Guidelines  on  production  agreements  do  not 
provide  sufficient  legal  certainty  to  conclude  agreements  without  the  risk  of  infringing 
competition law (20 respondents), and those that consider that they do (19 respondents). 
However,  the  assessment  of  the  specific  provisions  of  the  Specialisation  BER  paints  a 
more positive picture.  

First,  on  the  negative  side,  the  majority  of  respondents  to  the  public  consultation 
indicated that the market share threshold of 20% and its application (Articles 3 and 5 of 
the Specialisation BER) did not allow to identify agreements compliant with Article 101 
of  the  Treaty.  Mainly  business  associations  and  legal  professionals  (e.g.  law  firms) 
requested  an  increase  of  the  market  share  threshold,  while  they  also  referred  to  issues 
concerning the calculation of the market shares, the implementation period during which 
the  exemption  continues  to  apply  once  the  20%  share  has  been  exceeded  (up  to  2 
calendar  years)  or  the  coherence  between  the  threshold  of  the  Specialisation  BER  and 
other EU and national competition law regulations. 

Second, several respondents across different stakeholders groups104 referred to the need to 
update  and/or  expand  the  scope  of  the  Specialisation  BER  to  include  other  types  of 
specialisation and production agreements (e.g. tolling agreements). 

Third, on the positive side, the slight majority of the respondents that expressed a view 
(including  business  associations,  companies  and  a  few  law  firms)  indicated  that  the 
definitions that apply for the purpose of the Specialisation BER provide legal certainty. 
However,  several  law  firms  and  legal  associations  disagreed.  They  indicated  that  some 
definitions  were  unnecessarily  complex  and  several  aspects  of  the  Specialisation  BER 
could be clarified and simplified in order to increase legal certainty, such as the notions 
of  unilateral  and  reciprocal  specialisation,  joint  production  or  joint  distribution.  In 
addition, the application of the definitions of the Specialisation BER to different types of 
specialisation agreements was considered difficult. 

104   The  typology  of  respondents  that  contributed  to  the  public  consultation  is  described  in  section  4.1 

above. 

49 

 
                                                           
Fourth, the majority of respondents (mainly business associations and  law firms) to the 
public consultation that expressed a view considered that the explanations on the type of 
specialisation  agreements  to  which  the  exemption  applies  under  Article  2  of  the 
Specialisation  BER  and  the  list  of  hardcore  restrictions  such  as  price  fixing  certain 
limitation  of  output  sales  or  allocation  of  markets/customers  (Article  4  of  the 
Specialisation  BER)  allowed  to  identify  agreements  compliant  with  Article  101  of  the 
Treaty. Only a limited number of respondents disagreed, including a legal association for 
whom  certain  aspects  would  require  further  clarification  such  as  whether  there  is  a 
requirement  to  accept  exclusive  purchase  or  supply  obligations  to  benefit  from  the 
exemption under Article 2 of the Specialisation BER. 

Last,  all  the  respondents  that  expressed  a  view  across  different  stakeholders  groups 
(except two) considered that the Specialisation BER increased legal certainty compared 
with  a  situation  where  only  the  Horizontal  Guidelines  existed  and  applied.  The  two 
respondents that disagreed did not provide any explanations. 

The  majority  of  the  NCAs  generally  considered  that  the  Specialisation  BER  and 
Chapter 4  of  the  Horizontal  Guidelines  on  production  agreements  provided  sufficient 
legal  certainty  to  conclude  these  types  of  agreements  without  the  risk  of  infringing 
competition law.  

However,  a  few  NCAs  considered  that  further  clarification  and  guidance  would  be 
advisable to increase legal certainty, namely on (i) the notions of unilateral specialisation, 
joint  production,  joint  distribution  or  price  fixing,  (ii)  the  calculation  of  market  shares 
thresholds in dynamic markets and/or markets in which services are offered at zero prices 
and on (iii) the relationship between the Specialisation BER and other regulations such as 
the TTBER and the VBER.  

The evaluation study pointed out that the overall level of legal certainty provided by the 
Specialisation  BER  and  Chapter  4  of  the  Horizontal  Guidelines  is  considered  high. 
Respondents  indicated  that  the  Specialisation  BER  facilitated  self-assessment  and 
ensured consistency in the application of EU competition rules.  

(i)  understanding 

Nevertheless,  the  CATI  interviews  indicated  that  one  of  the  main  difficulties  related  to 
the  Specialisation  BER  concerns  the  need  for  external  support  to  conduct  their  self-
assessment, which is  in  line with  the main sources of difficulty identified by the CATI 
to 
respondents  which  concern 
specialization/production  agreement  that  can  benefit  from  an  exemption  and  (ii) 
understanding  the  conditions  for  exemption.  The  respondents  to  the  semi-structured 
interviews also pointed to (iii) some perceived discrepancies between the Specialisation 
BER  and  other  EU  competition  law  regulations  (such  as  the  Merger  Regulation,  the 
TTBER and the VBER). In addition, another issue raised in the context of the evaluation 
study  concerns  the  insufficient  guidance  provided  by  the  examples  in  the  Horizontal 
Guidelines,  which  are  considered  too  theoretical  in  nature  and,  hence,  impractical  as 
explanatory tools. 

the  definitions 

that  apply 

In  conclusion,  the  evidence  gathered  from  the  sources  indicated  above  suggests  that, 
despite  the  existence  of  some  issues,  stakeholders  seem  to  largely  support  that  the 

50 

 
Specialisation BER increases legal certainty as compared to a situation without the BER 
and where only the Horizontal Guidelines would apply. 

Purchasing agreements 

The  evidence  gathered  in  the  evaluation  suggests  that  Chapter  5  of  the  Horizontal 
Guidelines is overall a useful instrument that provides some degree of legal certainty for 
companies engaging in joint purchasing agreements.  

Still,  the  evaluation  identified  that,  according  to  stakeholders,  certain  provisions  of 
Chapter  5  of  the  Horizontal  Guidelines  lack  clarity,  in  particular,  on  the  distinction 
between  joint  purchasing  agreements  and  buyer  cartels,  joint  negotiation  and  joint 
bidding.  Chapter  5  is  also  no  longer  adapted  to  recent  market  developments,  in 
particular as regards the increased importance of joint purchasing agreements between 
retailers  in  the  EU,  so-called  retail  alliances.  Its  analysis  is  too  much  focussed  on 
positive downstream effects  on consumers  without  sufficient  consideration for  potential 
negative effects on suppliers and competitors. 

The evaluation also identified that, according to stakeholders, the safe harbour provided 
by  Chapter  5  should  be  increased  by  raising  the  market  share  thresholds  in  line  with 
other areas of EU competition law.  

Overall,  the  NCAs  considered  that  Chapter  5  of  the  Horizontal  Guidelines  provided 
sufficient  legal  certainty  for  the  assessment  of  purchasing  agreements.  Few  NCAs 
indicated that some parts were too abstract and in part unclear. 

The  evidence  gathered  in  the  evaluation  suggests  that  Chapter  5  of  the  Horizontal 
Guidelines is overall a useful instrument that provides some degree of legal certainty for 
companies engaging in joint purchasing agreements but does not fully meet its objective 
regarding the provision of legal certainty. 

Respondents to the public consultation are almost evenly split, also within the different 
stakeholder  groups,  as  regards  the  question  whether  Chapter  5  of  the  Horizontal 
Guidelines provides sufficient legal certainty. Many respondents consider that Chapter 5 
is not up to date with changes caused inter alia by the digitisation of the economy and 
the  proliferation  of  joint  purchasing  agreements  between  retailers  in  the  EU,  so-called 
retail  alliances.  A  wide  array  of  respondents  covering  individual  companies,  business 
associations  (retailers  in  particular)  and  law  firms  and  an  association  of  competition 
lawyers and economists, also consider that the safe harbour is too limited as the market 
share threshold is too low.  

Several law firms and associations of competition lawyers and economists consider that 
the  chapter  does  not  contain  sufficient  guidance  on  the  distinction  between  joint 
purchasing agreements and buying cartels and between joint purchasing and joint bidding 
or  joint  negotiation  respectively.  They  also  consider  that  it  lacks  clarification  of  the 
degree of integration required and the balancing  between efficiencies and greater buyer 
power created by joint purchasing agreements.  

51 

 
Finally,  respondents  representing  manufacturers  and  retailers  raised  specific  issues 
regarding  retail  alliances.  While  many  retailers  only  seek  some  clarification  and 
especially more practical examples, some retailers question the need for two consecutive 
assessments as they consider that the horizontal and vertical aspects should be assessed 
together.  Manufacturers  consider  that  Chapter  5  of  the  Horizontal  Guidelines  should 
address  particular  practices  applied  by  retailers  through  their  alliances  (including,  for 
example  (i)  cooperation  where  they  do  not  purchase  any  products  but  aggregate  their 
buyer  power  to  extract  fees  for  services,  (ii)  collective  delisting,  and  (iii)  exchange  of 
information).  Manufacturers  also  request  a  clarification  in  the  Horizontal  Guidelines 
about  the  position  of  retailers  as  regards  their  dual  role  as  both  customers  and  as 
competitors with their own private label products. 

Overall,  the  NCAs  considered  that  Chapter  5  of  the  Horizontal  Guidelines  provided 
sufficient  legal  certainty  for  the  assessment  of  purchasing  agreements.  Few  NCAs 
indicated that some parts were too abstract and in part unclear. Furthermore, a few NCAs 
pointed  to  a  lack  of  guidance  on  market  concentration,  purchasing  power  and  joint 
bidding.  Some  NCAs  also  favoured  more  clarity  on  the  distinction  between  joint 
purchasing and buyer cartels or collective boycotts. 

The  evaluation  study  finds  that  legal  certainty  is  overall  ensured  by  Chapter  5  of  the 
Horizontal Guidelines but the respondents mentioned a lack of clarity on some aspects. 
For example, it lacks clear guidance on how legitimate joint purchasing is distinguished 
from an outright buyer cartel. 

Many  respondents  indicated  that  the  current  safe  harbour  of  15%  for  joint  purchasing 
agreements is not reasonable or consistent with other provisions of EU competition law 
regulations  (such  as  the  EUMR 105  and  the  VBER),  where  safe  harbour  rules  allow 
considerably higher market shares. 

In  addition,  the  study  identified  the  increasing  cooperation  between  retailers  through 
national and European retail alliances as one of the main trends in the retail sector in the 
EU.  Through  such  alliances,  retailers  cooperate  on  procurement  from  and  services 
provided  to  manufacturers.  The  proliferation  of  these  alliances  has  led  to  increased 
scrutiny by the Commission106 and NCAs.107  

105   Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between 
undertakings  (the  EC  Merger  Regulation),  OJ  L  24,  29.1.2004,  p.  1  (‘Merger  Regulation’  or 
‘EUMR’). 

in 

106   Commission’s  press  release  of  22  May  2019,  Antitrust:  Commission  confirms  unannounced 
at: 
retail 
inspections 
https://ec.europa.eu/commission/presscorner/detail/en/MEMO_19_2689;  Commission’s  press  release 
of  4  November  2019,  Antitrust:  Commission  opens  investigation  into  possible  collusion  by  two 
French 
at: 
https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6216. 

purchasing 

available 

available 

alliance, 

retailers 

grocery 

France, 

sector 

the 

in 

in 

a 

107   E.g.  Commission’s  press  release  of  17  September  2014,  ICA  Accepts  Commitments  from 
at: 

Supermarkets 
https://webgate.ec.europa.eu/multisite/ecn-brief/en/content/ica-accepts-commitments-supermarkets-
halt-purchasing-alliance-retail-sector-0. 

Purchasing  Alliance 

to  Halt 

available 

Sector, 

Retail 

in 

52 

 
                                                           
The study notes that the effects  on competition  and ultimately on consumer benefit  are 
debated in an increasing number of publications on the topic and this was also reflected 
in the feedback collected. Manufacturers and retailers strongly disagree about the fitness 
for purpose of Chapter  5 of the Horizontal Guidelines. Manufacturers consider that the 
chapter on joint purchasing does not sufficiently take into account the possible harmful 
effects  upstream  nor  some  practices  used  by  retail  alliances,  such  as  collective  fee 
extraction  mechanisms  and  collective  delisting.  On  the  other  hand,  according  to  most 
retailers,  the  current  Horizontal  Guidelines  ensure  positive  effects  on  consumer  prices 
(prices  decreased  or  did  not  increase),  consumer  choice  and  product  innovation.  They 
mainly argue in favour of raising the current safe harbour of 15%. 

The evidence from the JRC Report puts the focus on a case-by-case assessment of retail 
alliances  under  competition  law  and,  therefore,  suggests  to  provide  more  attention  and 
orientation,  especially  in  view  of  the  limited  case  law  and  decisional  practice,  in 
guidelines by competition authorities, and in particular to the potential harm to upstream 
suppliers. 

Agreements on Commercialisation 

The  evidence  gathered  in  the  evaluation  suggests  that  Chapter  6  of  the  Horizontal 
Guidelines  is  complex  and  does  not  necessarily  increase  legal  certainty  by  allowing 
companies  to  conclude  commercialisation  agreements  without  the  risk  of  infringing 
competition law.  

The  evaluation  identified  certain  provisions  that  require  further  guidance,  namely  the 
assessment of joint bidding and non-indispensable consortia.  

Moreover,  the  evaluation  revealed  a  need  to  update  the  examples  provided  in  the 
Horizontal Guidelines to take into account the recent case law of the Court of Justice of 
the  European  Union  and  market  developments  (e.g.  digital  markets  and  new  forms  of 
cooperation such as digital infrastructure sharing). 

The evaluation  did  show that the criticism is not shared equally among all stakeholder 
groups. NCAs considered overall that Chapter 6 of the Horizontal Guidelines provided 
sufficient legal certainty for the assessment of commercialisation agreements. 

The  evidence  gathered  in  the  evaluation  suggests  that  Chapter  6  of  the  Horizontal 
Guidelines does not fully meet its objective regarding the provision of legal certainty. 

The  majority  of  respondents  (business  associations,  companies  and  law  firms)  to  the 
public  consultation  indicated  that  Chapter  6  of  the  Horizontal  Guidelines  on 
commercialisation agreements did not provide sufficient legal certainty to conclude these 
agreements without the risk of infringing EU competition law. 

First,  several  respondents  pointed  out  that  the  Horizontal  Guidelines  should  provide 
guidance  on  how  to  assess  stand-alone  temporary  unions  of  consortia,  including  non-
indispensable consortia (i.e. those in which the parties can compete or are able to meet 
the  tender  requirements  on  their  own).  The  assessment  of  consortia  presents  additional 

53 

 
challenges such as the definition of the relevant market or the assessment of price fixing 
in the framework of the consortia. 

Second,  a  few  respondents  (legal  professionals  and  a  company)  referred  to  the  market 
share  threshold  applicable  to  commercialisation  agreements  (15%).  One  respondent 
requires  an  increase  of  the  threshold;  while  two  respondents  suggest  adding  a  general 
exemption  for  joint  sales  activities  and  marketing  agreements  if  the  combined  market 
share of the parties to the agreement is below 15%.  

Last,  some  respondents  also  pointed  to  (i)  the  lack  of  examples  in  Chapter  6  of  the 
Horizontal Guidelines  that  take into account  or reflect  recent  market  developments,  for 
example  concerning  digital  markets,  platforms  or  new  business  practices  connected  to 
digitisation, and (ii) the need to clarify certain notions such as the concept of price-fixing 
within  the  framework  of  a  horizontal  commercialisation  agreement  as  well  as  (iii)  the 
interplay  between  Chapter  6  of  the  Horizontal  Guidelines  and  other  EU  competition 
rules, in particular those covering vertical aspects (e.g. the VBER). 

Contrary  to  the  respondents  of  the  public  consultation,  NCAs  considered  overall  that 
Chapter  6  of  the  Horizontal  Guidelines  provided  sufficient  legal  certainty  for  the 
assessment of commercialisation agreements. However, a few NCAs pointed out that (i) 
the  guidance  on  joint  bidding  and  consortia  is  insufficient,  and  that  (ii)  the  examples 
provided in Chapter 6 are not sufficiently up to date and do not take into account recent 
market developments or the case law of the Court of Justice of the European Union.  

The evaluation study suggests that the rules on commercialisation agreements included 
in Chapter 6 of the Horizontal Guidelines are rather complex but still capable of ensuring 
an adequate or high level of legal certainty.  

However,  it  appears  that  commercialisation  agreements  do  not  tend  to  be  perceived  by 
stakeholders  as  stand-alone  agreements  but  as  part  of  a  R&D  and/or  a  specialisation 
agreements, which is likely to increase the complexity of the self-assessment.  

First,  according  to  the  CATI  respondents,  the  need  for  external  support  to  conduct  the 
self-assessment  is  one  of  the  main  factors  that  discourage  reaching  commercialisation 
agreements.  

Second, several large companies pointed out that the examples provided in Chapter 6 are 
not sufficiently detailed to allow them to understand the legal consequences of particular 
commercialisation  agreements.  CATI  respondents  indicated  that  the  lack  of  legal 
certainty  and  the  risk  of  possible  fines  is  also  one  of  the  key  factors  that  discourage 
reaching commercialisation agreements. 

Last, some law firms indicated that there is a lack of clarity regarding the notion of joint 
selling and the assessment of consortia, as well as the definition of competitors and non-
competitors and the regulatory frameworks that apply to agreements reached among each 
of them.  

In  conclusion,  while  the  evidence  gathered  through  the  public  consultation  and  that 
gathered through the targeted NCAs consultation and the evaluation study are not aligned 

54 

 
on  the  level  of  legal  certainty  provided  by  Chapter  6  of  the  Horizontal  Guidelines,  the 
evidence  suggests  that  respondents  share  some  common  concerns  that  affect  the 
effectiveness of the chapter, namely complexity of the rules, lack of guidance regarding 
consortia and up to date examples.  

Standardisation agreements 

The  evidence  gathered  in  the  evaluation  suggests  that  Chapter  7  of  the  Horizontal 
Guidelines, is overall a useful instrument that increases legal certainty.  

Nevertheless, the evaluation identified certain provisions that lack clarity or are difficult 
to apply, in particular as regards the requirement to license SEPs on FRAND terms and 
the  meaning  of  unrestricted  participation  in  the  standard  setting  process.  These  issues 
were  raised  in  the  public  consultation,  the  evaluation  study  or  in  other  Commission 
initiatives in standardisation matters.  

The  evidence  gathered  in  the  evaluation  suggests  that  Chapter  7  of  the  Horizontal 
Guidelines is overall a useful instrument that increases legal certainty but does not fully 
meet its objective regarding the provision of legal certainty. 

Respondents to the public consultation were split on the question of whether Chapter 7 
of  the  Horizontal  Guidelines  on  standardisation  agreements  provides  sufficient  legal 
certainty to conclude such agreements without the risk of infringing competition law.  

The  main  reasons  mentioned  for  the  view  that  Chapter  7  of  the  Horizontal  Guidelines 
would not  provide sufficient legal  certainty as regards standardisation agreements were 
the nature of the guidance and more specifically the fact that standardisation agreements 
do not benefit from a block exemption regulation.  

Respondents also noted that Chapter 7 of the Horizontal Guidelines only  provides high 
level guidance and does not deal with most commonly encountered situations in practice 
such  as  the  interpretation  of  FRAND  licensing  terms  and  how  to  address  licensing 
disputes in practice. Other respondents referred to the lack of clarity as regards the rules 
applicable to cooperation outside of standardisation bodies, before it becomes clear that a 
certain cooperation would lead to the development of an industry standard as well as to 
whether  social  and  non-technical  standards  would  be  included  in  the  guidance.  Some 
respondents also considered that Chapter 7 of the Horizontal Guidelines are not allowing 
sufficient  flexibility  in  the  standard-setting  process,  particularly  as  regards  the 
requirement  for  unrestricted  participation  in  the  standard-setting  process.  Other 
respondents raised the problem of transparency with regard to Standard Essential Patents.  

Lastly, there were diverging views expressed in the public consultation as to the meaning 
of the safe harbour condition to provide a commitment to offer to license essential IPR 
‘to  all  third  parties’  on  FRAND  terms  as  set  out  in  paragraph  285  of  the  Horizontal 
Guidelines.  Respondents  noted  that  this  safe  harbour  condition  was  interpreted  in 
different and opposing ways in practice: while some interpreted this as condition to offer 
a  license  to  all  third  parties  irrespective  of  their  place  in  the  value  chain,  others 
interpreted this as only being a condition to offer a license to all third parties at one level 
of the value chain. 

55 

 
The  NCAs  considered  that  Chapter  7  of  the  Horizontal  Guidelines  provides  sufficient 
legal  certainty  on  standardisation  agreements.  Two  NCAs  thought  that  given  the 
importance  of  standards  in  shaping  markets,  Chapter  7  misses  guidance  on  a  fair 
licensing  system  for  standards,  updated  to  reflect  case  law  developments  and  the 
the 
increasing  use  of  SEP-protected 
Communication from the Commission to the Institutions on ‘Setting out the EU approach 
to standard essential patents’108 the creation of patent pools or other licensing platforms, 
within the scope of EU competition law, should be encouraged. Finally, one NCA added 
that the evaluation and potential revision of the current rules needs to be business-model 
neutral in order not to distort the market-created level playing field.  

technologies.  In  particular,  according 

to 

The evaluation study found that the view on the legal certainty provided by Chapter 7 of 
the  Horizontal  Guidelines  is  relatively  aligned  across  all  types  of  stakeholders  from 
whom views were collected. Compared to what has been discussed for most of the other 
types  of  agreements,  even  the  smaller  companies  participating  in  the  CATI  interviews 
showed  a  lower  level  of  satisfaction  on  the  degree  of  legal  certainty  afforded  by  the 
current  guidance  on  standardisation  agreements.  The  evaluation  study  identified  three 
reasons  for  this:  (i)  the  vague  formulation  in  paragraph  295  as  regards  unrestricted 
participation  leaving  room  for  misinterpretation  as  well  as  leading  to  cumbersome 
negotiations,  (ii)  the  lack  of  reference  to  open  source  software  and  how  this  would  be 
dealt with in the standardisation process, and (iii) the divergent interpretation of the safe 
harbour condition in paragraph 285 to ‘license to all third parties’.  

The developments in matters linked to standardisation also point to most of the issues 
identified  above.  The  SEPs  Expert  Group  most  recently  made  suggestions  on  how  to 
address  certain  issues,  such  as  the  level  in  the  value  chain  at  which  a  FRAND  license 
should  be  granted,  the  joint  negotiation  of  licenses  and  the  question  of  flows  of 
information in the context of licensing. The IP Action plan of November 2020 announced 
that  the  Commission  would  further  promote  transparency  and  predictability  in  SEP 
licensing.  

Other types of horizontal cooperation agreements 

The  evidence  gathered  in  the  evaluation  suggests  that  the  HBERs  and  Horizontal 
Guidelines  do  not  provide  sufficient  legal  certainty  with  regard  to  other  types  of 
horizontal  cooperation  agreements.  Notably  the  guidance  on  agreements  pursuing 
for  what  concerns 
is  currently 
sustainability  objectives,  which 
environmental  standards  in  Chapter  7  of  the  Horizontal  Guidelines,  is  considered 
insufficient. 

incorporated 

Moreover, the evidence obtained indicates that stakeholders consider that data pooling, 
data  sharing  and  network  sharing  agreements  are  also  among  the  types  of  horizontal 
cooperation agreements that are either not included or not sufficiently addressed by the 
Horizontal Guidelines.  

108   Commission’s  Communication,  COM(2017)  712,  see 

footnote  89  above,  available  at: 

https://ec.europa.eu/docsroom/documents/26583. 

56 

 
                                                           
The analytical framework that is provided by the HBERs and Horizontal Guidelines was 
intended to deal with the most common types of horizontal cooperation agreements. The 
different  chapters  of  the  Horizontal  Guidelines  identify  these  most  common  types: 
information  exchange,  R&D,  production,  joint  purchasing,  commercialisation  and 
standardisation  agreements.  The  Horizontal  Guidelines  recognise  that  there  is  a 
potentially  large  number  of  types  and  combinations  of  horizontal  cooperation.  The 
Horizontal  Guidelines  are  intended  to  assist  companies  also  in  the  self-assessment  of 
other horizontal cooperation agreements with Article 101 of the Treaty.109  

The evidence  gathered in the evaluation  suggests that the Horizontal Guidelines do not 
fully  meet  their  objective  regarding  the  provision  of  legal  certainty  on  other  types  of 
horizontal cooperation agreements. 

Respondents  to  the  public  consultation  consider  that  –  out  of  all  types  of  other 
horizontal cooperation agreements not expressly mentioned in the Horizontal Guidelines 
– sustainability agreements should have been specifically addressed in order to increase 
legal certainty. Respondents also considered that the information exchange chapter does 
not adequately cover new types of horizontal cooperation regarding benchmarking, data 
pooling  and  data  sharing.  In  addition,  they  consider  that  insufficient  legal  certainty  is 
provided on types of collaboration regarding artificial intelligence, ecosystems, network 
sharing  and  platforms.  Respondents  made  similar  comments  regarding  the  joint 
purchasing chapter that currently does not sufficiently cover new types of retail alliances 
or buyer arrangements.  

The NCAs identified broadly the same categories of agreements. Most stressed the need 
for more guidance on sustainability agreements as they felt such guidance is lacking in 
the standardisation chapter. At least one NCA mentioned that the Horizontal Guidelines 
should also  reflect  the particularities of cooperation  in  digital  markets,  e.g. joint  digital 
platforms,  especially  trading  platforms,  vertically  integrated  platforms  offered  to 
competitors,  joint  bidding  agreements,  block  chain  agreements,  data  pooling/sharing, 
GDPR agreements. Other types of agreements mentioned by at least one NCA include: 
swaps  of  obligations  to  deliver,  quality  standards,  hub  and  spoke  arrangements,  labour 
market agreements, price signalling, agreements related to the COVID-19 crisis or other 
crises, airline alliances and network sharing. 

The evaluation study found that respondents consider that the Horizontal Guidelines do 
not contain guidance for, notably, horizontal cooperation agreements aiming to promote 
sustainability initiatives and for other types of cooperation in the digital market.  

Sustainability agreements  are not  defined nor addressed explicitly in  the current  text  of 
the Horizontal Guidelines. According to the respondents to the evaluation study, this is a 
source of legal uncertainty. The EU Green Deal is seen by many as an additional reason 
for  the  Commission  to  provide  legal  certainty  on  the  applicability  of  the  competition 

109   See Horizontal Guidelines, paragraph 7. 

57 

 
                                                           
rules  to  sustainability  agreements  to  enable  businesses  to  engage  in  large  scale 
cooperation agreements.  

Clarity  is  also  sought  on  what  type  of  benefits  can  be  taken  into  account  in  the 
assessment  of  sustainability  agreements  to  outweigh  the  possible  restrictive  effects  on 
competition of such agreements. Some respondents argue for accepting a broad range of 
benefits (e.g. reduction in CO2 emissions, animal welfare), irrespective of whether they 
occur  in  the  relevant  market  or  out  of  it  (so-called  ‘out  of  market  efficiencies’). 
Difficulties  related to  the identification and quantification of such benefits  are however 
acknowledged.  Some  stakeholders  argued  that  companies  may  be  discouraged  from 
entering  into  sustainability  agreements  due  to  the  legal  risk  of  a  competition  law 
infringement.  NCAs  also  rarely  dealt  with  cases  involving  this  type  of  horizontal 
cooperation in recent years. 

The  absence  of  specific  provisions  on  network  sharing  agreements  and  data  pooling 
raised  concerns  of  companies  operating  in  media  and  telecommunication  sectors:  these 
stakeholders  highlighted  the  competitive  risk  associated  to  infrastructural  investments 
which are essential in developing digital applications and networks (from the Internet of 
Things to the rollout of 5G).  

Another  source  of  legal  uncertainty  concerns  digital  markets  and,  in  particular,  the 
definition of such markets. Such market definition is often characterised by the presence 
of many ‘zero price markets’ which make the product market definition and the related 
market share criteria for exemptions complex. In this sense, stakeholders commented that 
the concept of ‘hardcore restriction’, especially in the telecommunication market, might 
be  misleading:  it  might  be  difficult  to  fall  under  an  exemption  (defined  only  through 
market  shares),  as  there  are  only  a  few  big  players  that  hold  significant  market  shares. 
Stakeholders  argued  that  in  this  investment-intensive  industry,  the  critical  mass  to 
achieve  long-term  competitive  outcomes  might  be  achieved  only  through  horizontal 
cooperation  between  competitors:  for  instance,  stakeholders  argued  that  the  assessment 
of network sharing agreements should not be based only on market shares, but rather on 
pro-competitive aspects related to this type of cooperation (e.g. better quality of service, 
faster deployment of new technologies, consumer benefits connected to innovation). 

The current Horizontal Guidelines has also triggered some criticisms on their relevance 
in business environments characterised by data-intensive forms of cooperation. 

Simplifying administrative supervision 

The  Commission  services  asked  NCAs  in  the  targeted  consultation  whether  they 
considered that the HBERs and Horizontal Guidelines met the third specific objective: to 
simplify administrative supervision. 

Most of the NCAs indicated that they could  not  answer the question whether the R&D 
and  Specialisation  BERs  had  simplified  the  application  of  EU  competition  rules 
compared to a situation where only the Horizontal Guidelines would exist. As reason for 
this  hesitance,  the  NCAs  indicated  that  they  did  not  have  (extensive)  experience  in 
investigating  R&D  and  Specialisation  agreements.  The  NCAs  that  did  feel  that  their 
administrative  supervision  was  simplified  by  the  HBERs  considered  especially  that  the 

58 

 
binding nature of the R&D and Specialisation BERs offered more legal certainty. Other 
NCAs mentioned that the HBERs and the Horizontal Guidelines complement each other.  

According  to  the  NCAs,  the  Horizontal  Guidelines  have  clearly  met  their  objective  of 
simplifying administrative supervision. NCAs considered that the Horizontal Guidelines 
provide comprehensive guidance to both companies and authorities on how to assess the 
compatibility of different horizontal cooperation agreements with EU competition rules. 
They also noted that national courts take the Horizontal Guidelines into consideration in 
their cases. 

5.2. Efficiency 

5.2.1.  The evaluation questions 

Efficiency considers the relationship between the resources required in the application of 
the HBERs, together with the Horizontal Guidelines, and the changes generated by them. 
It  considers  whether  the  HBERs  and  the  Horizontal  Guidelines  were  efficient  in 
achieving  their  objectives,  taking  into  account  the  costs  and  benefits  associated  with 
applying them.  

In  accordance  with  the  current  framework  for  applying  Article  101  of  the  Treaty, 
businesses  have  to  self-assess  their  horizontal  cooperation  agreements  to  ensure 
compliance  with  Article  101  of  the  Treaty.  The  HBERs  and  the  Horizontal  Guidelines 
aim  to  facilitate  this  self-assessment  by  creating  safe  harbours  for  certain  horizontal 
cooperation  agreements  that  can  be  considered  with  sufficient  certainty  as  efficiency-
enhancing. These rules also create a common framework for the assessment of horizontal 
cooperation agreements under Article 101 of the Treaty across the EU. In this context, it 
is  important  to  note  that  the  HBERs,  together  with  the  Horizontal  Guidelines,  do  not 
impose  any  additional  compliance  obligations  on  companies  beyond  those  reflected  in 
Article  101  of  the  Treaty.  Nevertheless,  in  order  to  verify  whether  their  horizontal 
cooperation agreements can benefit from the safe harbours provided by the HBERs and 
the Horizontal Guidelines, companies need to check them against the conditions set out 
in these rules, which may entail costs. 

In  assessing  whether  the  HBERs,  together  with  the  Horizontal  Guidelines,  have  been 
efficient in achieving their objectives, the Commission services asked the stakeholders in 
the public consultation, the NCAs and the external consultants several questions on costs 
and benefits. 

With the information obtained, the Commission services analysed the different kinds of 
costs  that  are  associated  with  applying  the  HBERs  and  Horizontal  Guidelines.  The 
Commission  services  then  measured  how  these  costs  have  evolved  compared  to  the 
previous  legislative  framework  (Regulation  (EC)  No  2659/2000  on  R&D,  Regulation 
(EC)  No  2658/2000  on  Specialisation  agreements  and  the  accompanying  Horizontal 
Guidelines).  The  Commission  services  also  asked  respondents  to  consider  what  would 
have  happened  to  the  costs  had  the  HBERs  not  been  there  but  only  the  Horizontal 
Guidelines.  

59 

 
Finally,  the  Commission  services  weighed  whether  the  costs  of  applying  the  HBERs, 
together with the Horizontal Guidelines, in the self-assessment of a particular horizontal 
cooperation  agreement  are  proportionate  to  the  benefits  these  bring,  namely  the 
facilitation of the companies’ self-assessment.  

5.2.2.  The main findings regarding the efficiency of the intervention 

The  evidence  gathered  in  the  evaluation  was  not  sufficient  to  allow  the  Commission 
services  to  conclude  on  the  costs  that  companies  incur  for  self-assessing  the 
compatibility of  their horizontal  cooperation agreements  with Article 101 of  the Treaty 
with the help of the HBERs and the Horizontal Guidelines. Most stakeholders were only 
able  to  give  a  qualitative  analysis  of  the  costs  of  the  intervention.  They  identified  in 
general  two  types  of  costs:  (i)  direct  costs  (i.e.,  costs  directly  derived  from  the  self-
assessment of the agreements with the help of the HBERs and the Horizontal Guidelines) 
and  (ii)  indirect  costs  (e.g.  missed  opportunities,  changes  in  company  strategy  or 
potential  fines).  Moreover,  the  costs  of  applying  the  HBERs  and  the  Horizontal 
Guidelines  vary  depending  on  several  factors,  including  the  industry  and  the  type  of 
agreement.  

Overall,  costs  were  generally  considered  proportionate  to  the  benefits  of  having  the 
HBERs and the Horizontal Guidelines. 

Furthermore, the evidence gathered did not allow to determine the evolution of the costs 
compared to the previous regulatory framework, even if there are some indications that 
costs have decreased and that they would be higher in the absence of the HBERs. 

In particular NCAs considered that costs would increase without the HBERs, because of 
the  lack  of  safe  harbours,  the  need  to  have  national  regulations  or  more  guidance  or 
intervention from the NCAs, which would be more difficult to provide. 

Costs associated with applying the HBERs and the Horizontal Guidelines110 

The  evidence  gathered  in  the  evaluation  was  not  sufficient  to  allow  the  Commission 
services  to  draw  conclusions  on  the  costs  that  companies  incur  for  self-assessing  the 
compatibility of their horizontal cooperation agreements with  Article 101 of the Treaty 
with the help of the HBERs and the Horizontal Guidelines. 

Respondents to the public consultation identified a variety of costs associated with the 
application of the HBERs. The respondents were less specific when identifying the costs 
of applying the Horizontal Guidelines.  

Respondents differentiated between direct and indirect costs. Direct costs would be those 
associated  to  or  derived  from  the  self-assessment  of  their  horizontal  cooperation 
agreements.  These  costs  relate  to  salaries  and  legal  fees  derived  from  internal  and 
external  legal  advice,  respectively.  They  also  include  compliance  costs  throughout  the 

110   Respondents  to  the  public  consultation  were  requested  to  provide  an  estimate  of  their  quantifiable 

costs and to explain how they calculated these costs. 

60 

 
                                                           
lifecycle  of  the  agreement  (including  costs  derived  from  the  supervision  of  meetings). 
Other  direct  costs  involved  hiring  economic  consultants,  contract  negotiations  and 
training costs. 

However,  respondents  to  the  public  consultation  considered  that  the  application  of  the 
HBERs, together with the Horizontal Guidelines, also include indirect costs, unrelated to 
the self-assessment but associated with it. These are costs due to implementation delays 
or  loss  of  business  opportunities,  as  well  as  strategic  and  long-term  industry  costs, 
investment  costs  (e.g.  research  costs,  market  research  costs,  patent  costs),  marketing 
costs,  infrastructure  costs,  production  and  sales  costs,  packaging  and  transport  costs 
and/or recycling costs, among others, caused by the legal uncertainty created by the rules 
or the excessive stringency of the rules.  

Moreover,  the  costs  of  assessing  the  application  of  the  HBERs  and  the  Horizontal 
Guidelines  vary  depending  on  several  factors,  including  the  industry  and  the  type  of 
agreement.  For  example,  a  few  respondents  indicated  that  costs  associated  with  the 
application of the R&D BER are high because the exemption is too narrow and requires 
conducting many individual assessments. Another respondent noted that concerning joint 
purchasing  agreements  (Chapter  5  of  the  Horizontal  Guidelines)  costs  increased 
depending  on  whether  they  meet  or  not  the  safe  harbour  criteria  foreseen  in  these 
guidelines.  

Respondents  considered  that  costs  associated  with  the  assessment  of  horizontal 
cooperation  agreements  that  fall  outside  the  safe  harbour  can  sometimes  deter  some 
cooperation projects.  Some respondents  also  stated that transaction  and implementation 
costs  were  incurred  due  to  ambiguities  regarding,  in  particular,  Chapter  7  of  the 
Horizontal Guidelines that deals  with standardisation. They also pointed out that SMEs 
tend to feel these costs the most.  

In terms of estimating the costs of applying the HBERs and/or the Horizontal Guidelines, 
the majority of respondents to the public consultation considered that it was very difficult 
or  impossible  to  estimate  them  and  that  they  did  not  know  or  could  not  provide  an 
estimate of these costs.  

With  regard  to  the  costs  for  companies,  one  NCA  indicated  that  the  guidance  on 
information  exchange  and  the  examples  provided  in  Chapter  2  of  the  Horizontal 
Guidelines  have  reduced  the  time  required  to  assess  horizontal  cooperation  agreements 
and therefore reduced the costs of this analysis. However, another NCA considered that 
the  lack  of  harmonisation  in  the  EU  due  to  the  non-binding  nature  of  the  Horizontal 
Guidelines  is  a  potential  risk  factor  for  increased  costs,  given  the  obligation  to  comply 
with different jurisdictional standards. 

The  evaluation  study  found 
that  regulatory  uncertainty  concerning  horizontal 
cooperation  agreements  represents  a  risk  for  businesses:  this  risk  can  be  translated  to 
increased direct legal and economic advisory costs and/or to potential indirect costs, such 
as missed opportunities, changes in company strategy or potential fines. These costs are 
not  directly  generated  by  specific  provisions  included  in  the  HBERs  or  the  Horizontal 

61 

 
Guidelines  but  they  are  rather  a  consequence  of  the  perceived  lack  of  sufficient  legal 
certainty.  

Concerning  the  quantification  of  costs,  the  evaluation  study  pointed  out  that  neither 
interviewees nor the NCAs were able to quantify the costs of applying the HBERs and 
the  Horizontal  Guidelines.  Some  of  the  companies  that  took  part  in  the  case  studies 
attempted to quantify the costs by referring to the time spent on compliance assessment 
by  their  respective  in  house  legal  teams.  The  time  required  ranged  from  one  day  –  for 
agreements  the  in  house  legal  team  had  a  lot  of  experience  with  –  to  one  month  if  the 
legal  team’s  assessment  was  partly  dependent  on  information  provided  by  the  business 
team.  Some  respondents  mentioned  that  questions  regarding  information  exchange, 
specialisation and standardisation were considered simpler while more time was needed 
for assessing complex R&D agreements. 

Cost of ensuring compliance if the HBERs were not in place but only the Horizontal 
Guidelines applied 

While most respondents to the public consultation were not able to provide an answer to 
this question, more than a third of the respondents considered that costs would increase if 
the  HBERs  would  not  be  in  place.  The  main  reasons  identified  were  the  loss  of  legal 
certainty and of consistency the HBERs bring across the Union. 

The  responses  of  the  NCAs  provided  a  similar  result  as  the  public  consultation.  While 
only a minority of the NCAs were able to reply, those NCAs referred to  an increase in 
compliance  costs  for  companies  stemming  from  the  need  to  hire  consultants/legal 
advisers, the loss of safe harbours and the absence of harmonisation requiring companies 
to follow diverse national regulations.  

This  was  also  the  position  of  the  NCAs  regarding  their  own  costs  for  ensuring 
compliance  with  the  rules.  NCAs  considered  that  costs  would  increase  without  the 
HBERs,  because  of  the  lack  of  safe  harbours,  the  need  to  have  national  regulations  or 
more guidance or intervention from the NCAs which would be more difficult to provide. 
One NCA added that the Specialisation BER provides an analytical framework based on 
economics and case law, which is very useful to analyse cases.  

The evaluation study pointed out that a significant number of respondents were not able 
to  provide  a  response  to  this  question;  however,  those  that  were  able  to  respond 
considered that costs would be higher in the absence of the HBERs.  

Cost evolution compared with the previous legislative framework 

The majority of respondents to the public consultation did not know whether the costs 
generated by the application of the R&D BER increased or decreased compared with the 
previous legislative framework. Some respondents considered that costs increased, while 
few indicated that costs decreased.  

One respondent that applied the Specialisation BER considered that the costs of assessing 
the application of the Specialisation BER and the Horizontal Guidelines have decreased 
compared  to  the  previous  legislative  framework,  except  in  the  insurance  industry  in 

62 

 
which  the  self-assessment  costs  have  overall  increased  given  that  the  former  Insurance 
Block  Exemption  Regulation 111 offered  clearer  requirements  specifically  aimed  at  the 
insurance industry. Other respondents indicated that the reason for the costs increase was 
the complexity of the rules.  

Those  respondents  that  held  that  costs,  on  the  contrary,  have  decreased  stated  that  the 
current legislative framework is easier to apply and clearer than the previous one. They 
also  mentioned  that  the  current  HBERs  and  Horizontal  Guidelines  are  more  consistent 
amongst themselves and better drafted than their predecessors.  

The majority of the NCAs were not able to assess how the costs have evolved, but those 
that took a position indicated that the costs generated by the application of the HBERs or 
the Horizontal Guidelines decreased for companies compared to the previous legislative 
framework.  The  NCAs  also  considered  that  the  same  would  be  true  with  regard  to  the 
costs for public authorities generated by the application of the HBERs or the Horizontal 
Guidelines. 

The evaluation study considered that most stakeholders were not able to assess how the 
costs generated by assessing horizontal cooperation agreements under the HBERs and the 
Horizontal Guidelines have evolved in comparison to the previous regulatory framework. 
However,  one  respondent  with  experience  applying  the  previous  regime  indicated  that 
costs have decreased due to the increased ease of application of the current framework. 

Benefits of having the HBERs and the Horizontal Guidelines 

The  evidence  gathered  in  the  evaluation  establishes  that  the  costs  that  companies  incur 
for  self-assessing  the  compatibility  of  their  horizontal  cooperation  agreements  with 
Article 101 of the Treaty  with the help  of the HBERs  and the Horizontal Guidelines is 
proportionate to the benefits. 

When asked about the benefits of having the HBERs and the Horizontal Guidelines, the 
majority of respondents  to  the  public  consultation considered that the costs associated 
with their application were proportionate to their benefits. 

A similar view was expressed by the majority of the NCAs. In particular, several NCAs 
mentioned  that  the  self-assessment  made  by  companies  simplifies  the  application  of 
competition  rules  by  NCAs  and  decreases  the  costs  of  their  intervention.  Some  NCAs 
also  mentioned  that  the  HBERs  and  the  Horizontal  Guidelines  provide  a  reliable 
reference  and  framework  that  help  addressing  cases  faster  and  reduces  the  number  of 
complaints and requests for guidance. 

111   Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of 
the  Treaty  to  certain  categories  of  agreements,  decisions  and  concerted  practices  in  the  insurance 
sector,  OJ  L  53,  28.2.2003,  p.  8  (‘Insurance  BER  358/2003’);  Commission  Regulation  (EU)  No 
267/2010 of 24 March 2010 on the application of Article 101(3) of the Treaty on the Functioning of 
the  European  Union  to  certain  categories  of  agreements,  decisions  and  concerted  practices  in  the 
insurance sector, OJ L 83, 30.3.2010, p. 1 (‘Insurance BER 267/2010’). 

63 

 
                                                           
The  evaluation  study  indicated  that  the  NCAs  and  several  interviewees  estimated  that 
the  costs  are  proportionate  to  the  benefits.  However,  with  regard  to  horizontal 
commercialisation  agreements,  information  exchanges  and  standardisation  agreements, 
the benefits brought by the Horizontal Guidelines were considered somewhat limited in 
comparison to the costs of self-assessment, in particular due to the lack of legal certainty, 
insufficient guidance and/or the need of further in-depth legal analysis. 

5.3. Relevance 

5.3.1.  The evaluation questions 

Relevance  looks  at  whether  the  objectives  of  the  intervention  still  meet  the  needs  and 
problems identified by stakeholders. 

The assessment of the relevance of the HBERs, together with the Horizontal Guidelines, 
focuses on whether their objectives have proven to be appropriate and whether they still 
correspond to the current needs, taking into account the market developments that have 
taken place since their adoption.  

In  assessing  whether  the  HBERs,  together  with  the  Horizontal  Guidelines,  are  still 
relevant, the Commission services focused on two main aspects.  

First, the Commission services assessed what stakeholders consider the major trends and 
developments  that  had  an  impact  on  the  effectiveness  of  the  HBERs  and  Horizontal 
Guidelines.  The  major  trends  and  developments  identified  refer  to  topics  such  as  the 
pursuit of sustainability goals and digitisation (see also section 3.1.3). 

Second,  the  Commission  services  assessed  whether,  in  view  of  these  trends  and 
developments, the objectives of the HBERs and the Horizontal Guidelines still meet the 
needs and problems of the stakeholders. As set out in Section 2.3, the general objective 
of  the  intervention  is  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 linked objectives are (i) to ensure an effective protection of competition; (ii) 
to  provide  adequate  legal  certainty  for  companies  and  (iii)  to  simplify  administrative 
supervision. 

The  Commission  services  also  considered  how  well  adapted  the  intervention  is  to  the 
major trends and market developments. 

Even  though  the  exemptions  in  the  HBERs  rely  on  conditions  that  require  some 
interpretation, notably to allow their application to types of cooperation that did not exist 
at  the  time  of  adoption  of  the  HBERs,  it  cannot  be  excluded  that  subsequent  market 
developments may nevertheless have led to gaps in the exemption or resulted in a lack of 
clarity  as  to  how  the  exemption  applies  to  new  types  of  horizontal  cooperation 
agreements.  Similarly,  the  analytical  framework  provided  by  the  Horizontal  Guidelines 
was  intended  to  cover  the  most  common  types  of  horizontal  cooperation  agreements. 
Major trends and developments may have changed what these most common types are. 

64 

 
Therefore, the Commission services asked stakeholders in the public consultation and the 
NCAs whether major trends and developments have affected the relevance of the HBERs 
and  the  Horizontal  Guidelines.  In  the  context  of  the  evaluation  study,  the  Commission 
services  requested  the  contractor  to  assess  how  the  prevalence  of  different  types  of 
horizontal  cooperation  agreements  has  evolved  since  2011.  The  evaluation  study  also 
specifically  considered  whether  the  most  common  types  of  horizontal  cooperation 
agreements  as  identified  in  the  Horizontal  Guidelines  still  match  the  experience  of 
stakeholders.  

5.3.2.  The main findings regarding the relevance of the intervention 

The  evaluation  identified  two  major  trends  and  developments,  namely  the  pursuit  of 
sustainability  goals  and  digitisation.  Other  trends  and  developments  mentioned  were 
globalisation,  market  concentration,  issues  related  to  standard  essential  patents,  and 
increased competition law enforcement. 

The evidence gathered during the evaluation suggests that the objectives of the HBERs 
and  the  Horizontal  Guidelines  are  still  relevant.  If  anything,  digitisation  and 
globalisation have made it more important to protect competition and provide adequate 
legal certainty. For the NCAs, the objective of simplifying the administrative supervision 
remains  relevant  especially  in  view  of  the  decentralised  application  of  EU  competition 
law. 

Overall,  the  combination  of  block  exemption  regulations  and  guidelines  appears 
appropriate  for  meeting  the  objectives.  For  stakeholders  involved  in  R&D  cooperation 
and  in  specialisation  agreements,  the  provision  of  a  binding  exemption  combined  with 
guidance on how to apply the conditions for exemption continues to meet their needs.  

While  many  stakeholders  have  indicated  that  the  Horizontal  Guidelines  overall  meet 
their  objectives  (and  are  therefore  generally  effective),  the  nature  of  this  intervention 
means that they are less suitable to meet their need for legal certainty. Guidelines do not 
offer the same level of legal certainty as a block exemption regulation. Overall, however, 
stakeholders  recognise  the  Horizontal  Guidelines  as  still  relevant.  However,  the 
identified  trends  and  developments  mean  that  for  stakeholders  not  all  chapters  of  the 
Horizontal  Guidelines  are  considered  equally  relevant.  The  increased  importance  of 
sustainability goals for instance entails that the Horizontal Guidelines are less relevant 
for the self-assessment of sustainability agreements which are not specifically addressed. 
In addition, technological developments stemming from digitisation entail that for many 
stakeholders it has become more difficult to distinguish between horizontal and vertical 
aspects of cooperation.  

Major trends and developments 

The  respondents  to  the  public  consultation  identified  a  number  of  major  trends  that 
affected the application of the HBERs and the Horizontal Guidelines.  

65 

 
The  most  important  development  is  the  pursuit  of  sustainability  goals.  Respondents 
believe  that  this  results  in  increased  demand  by  consumers  and  businesses  for 
sustainable, ethical and environmentally friendly business practices. 

The second most important development for respondents was digitisation. This covers a 
wide range of issues such as an increasing reliance on digital technologies, the impact of 
data on competition in both innovative and traditional markets, data pooling, data sharing 
and algorithms. Further issues that were mentioned in this regard were the digitisation of 
the audiovisual business, the development of more complex products and IT landscape, 
tendencies  to  more  data  and  platform  driven  business  models,  the  emergence  of  two-
sided technology platforms, artificial intelligence, Internet of Things, and of FinTech and 
cryptocurrencies.  

Another  important  development  concerns  globalisation  and  increased  international 
competition. Respondents specifically mentioned competition with companies from other 
jurisdictions where competition rules are less strict and/or where they compete with state-
sponsored  players.  Respondents  indicated  that  under  these  conditions  European 
companies  often  have  difficulties  competing  on  their  own  and,  therefore,  need  to 
cooperate. 

Other major developments identified by respondents to the public consultation concerned 
recent  developments  in  the  case  law  of  the  Union  courts,  for  example,  as  regards  the 
concept  of  single  economic  entity;  the  changing  standardisation  landscape,  which 
resulted  in  a  variety  of  new  market  players,  in  particular  in  the  Internet  of  Things  and 
related  sectors;  the  emergence  of  purchasing  alliances  that  are  formed  mainly  by 
retailers; the strengthening of private enforcement; the need for infrastructure sharing to 
roll  out  new  technologies,  the  dissolution  of  traditional  competitive  structures,  the 
blurring  of  lines  between  horizontal  and  vertical  structures,  and  the  emergence  of  dual 
distribution, etc.  

The NCAs also raised most of the major trends that were mentioned by the respondents 
to the public consultation as affecting the application of the HBERs and the Horizontal 
Guidelines because these are not sufficiently addressed in the current texts. In particular, 
the  NCAs  pointed  to  major  developments  such  as  the  pursuit  of  sustainability  goals, 
digitisation (including the digital economy, platforms or e-commerce), developments of 
national and Union case law and standardisation, among others.  

The evaluation study pointed out that the digitisation of the economy and the increased 
importance of the pursuit of sustainability objectives are the two major trends identified 
by  stakeholders  as  having  an  impact  on  the  relevance  of  the  objectives  of  the  current 
regulatory framework.  

Moreover, the evaluation study found out that the NCAs have increasingly investigated 
typologies of agreements that are currently not explicitly mentioned in the Guidelines. In 
particular,  NCAs  have  investigated  a  number  of  cases  concerning  data  sharing, 
sustainability  and  joint  bidding  agreements.  The  NCAs  have  assessed  these  types  of 
agreements by relying on different chapters of the Horizontal Guidelines. 

66 

 
Relevance  

The evidence gathered during the evaluation suggests that the objectives of the HBERs 
and the Horizontal Guidelines are still considered relevant.  

Considering  the  major  trends  and  developments  described  above,  the  majority  of  the 
respondents  to  the  public  consultation  indicated that the objectives of the HBERs  and 
the  Horizontal  Guidelines  are  still  relevant.  Stakeholders  expressed  notably  that  the 
provision of adequate legal certainty, making it easier for companies to perform the self-
assessment  required  under  Regulation  (EC)  No  1/2003,  is  essential.  Stakeholders 
consider  legal  certainty  about  the  agreements  they  can  conclude  without  infringing 
Article 101 of the Treaty crucial to grow and innovate. In addition, stakeholders consider 
that the protection of competition is all the more important in a digital Europe where the 
industry has to deal with global challenges. 

While  respondents  considered  that  the  objectives  of  the  HBERs  and  Horizontal 
Guidelines  are  still  relevant,  many  respondents  were  also  of  the  view  that  the  range  of 
situations  in  which  companies  now  cooperate  requires  an  update  of  the  rules.  Some 
respondents  would  like  to  ensure  that  the  rules  reflect  the  Commission’s  recent 
enforcement  practice  and  that  the  examples  are  made  more  relevant  to  the  modern 
digitised  economy  and  other  major  trends  and  developments.  Similarly,  some 
respondents  believed  that  the  rules  should  reflect  the  Commission’s  wider  policies  and 
the needs of today’s society. The Commission’s Green Deal was explicitly mentioned in 
this regard. Some respondents also recommended to reflect, where applicable, recent case 
law of the Union courts in the texts.  

The HBERs and the Horizontal Guidelines are also still considered relevant. However, a 
limited number of respondents  disagreed and a significant  number of  respondents  were 
unable to provide a view.  

In  particular,  the  rules  concerning  standardisation  agreements,  R&D  agreements  and 
information  exchanges  were  largely  considered  relevant,  while  the  rules  concerning 
commercialisation  agreements  generated  a  less  clear  result.  Respondents  were  almost 
evenly split  between those that did  not have a view and those that considered the rules 
remain relevant. 

The majority of the NCAs agreed with the respondents to the public consultation that the 
objectives of the HBERs and the Horizontal Guidelines and the instruments themselves 
are  still  relevant.  Notably  in  view  of  the  decentralised  enforcement  of  EU  competition 
law,  the  objective  of  simplifying  administrative  supervision  remains  relevant  for  the 
NCAs. Even if some clarifications and updates are needed, in particular regarding recent 
trends and developments (e.g. digitisation, case law of the Union courts, etc.), the NCAs 
considered that the current texts still provide a useful and efficient framework.  

As indicated  above, the  evaluation  study  identified two major trends that  have had an 
impact  on  the  HBERs  and  the  Horizontal  Guidelines,  namely  the  digitisation  of  the 
economy and the increased importance of the pursuit of sustainability goals. 

67 

 
According  to  the  study,  new  digital  trends  reduce,  in  particular,  the  relevance  of  the 
Horizontal Guidelines in the treatment of  commercialisation agreements. New forms of 
cooperation,  such  as  infrastructure  sharing,  data  sharing  and  data  pooling  are  currently 
missing from the chapter on commercialisation agreements. Additionally, as pointed out 
by  an  industry  association  in  the  broadcasting  sector,  partnerships  for  the  provision  of 
media  content  (e.g.  partnerships  for  the  creation  of  joint  Video-On-Demand  platforms) 
could be included as new types of commercialisation agreements, promoting innovation 
and quality content. 

The digitisation of the economy also  affects  the relevance of the Horizontal Guidelines 
concerning information exchange practices, due to the increasing relevance of data over 
the  past  decade.  In  particular,  stakeholders  mentioned  the  lack  of  clarity  in  cases  of 
information  exchange  in  digital  business  models  such  as  platforms,  ecosystems  and 
hybrid  cooperation  models;  combinations  of  horizontal  and  vertical  relations  for  the 
exchange of information in digital ecosystems and data pooling.  

With regard to sustainability, the findings of the evaluation study point out that one of the 
main gaps in the Horizontal Guidelines is the lack of guidance on agreements aimed at 
achieving sustainability goals. This grey area is twofold: on one hand, there is a question 
on what  can be defined as a horizontal cooperation agreement pursuing a sustainability 
goal, without providing  a too  broad definition that leaves room for the phenomenon of 
‘greenwashing’.112 On the other hand, there is uncertainty on the competitive assessment 
of  sustainability  agreements  that  have  already  been  concluded  among  firms.  Such 
agreements  are  currently  assessed  as  one  of  the  categories  of  agreements  mentioned  in 
the Horizontal Guidelines, such as, for example, standardisation agreements.  

Finally, a number of stakeholders argued that the Horizontal Guidelines do not provide 
guidance in the assessment of societal benefits and of economic efficiencies generated by 
sustainability  agreements  (e.g.  reduction  in  gas  emissions,  increased  animal  welfare, 
etc.).  At  the  moment,  ‘non-monetary’  outcomes  of  such  agreements  are  not  correctly 
weighted: the focus on the short term (e.g. the impact on product prices) does not capture 
future, longer term environmental efficiencies (e.g. reduction in CO2 emissions). 

5.4. Coherence 

5.4.1.  The evaluation questions 

When  assessing  the  coherence  of  the  HBERs  and  Horizontal  Guidelines,  other 
Commission rules and guidance on the application of Article 101 of the Treaty as well as 
other  EU  legislation  with  relevance  for  horizontal  cooperation  agreements  have  to  be 
taken into account. In addition, rules and guidance can also be provided by other sources 
outside the Commission, such as by case law from the Court of Justice of the European 
Union or national courts, or by national rules.  

112   ‘Greenwashing’  is  the  process  of  conveying  either  a  false  impression  or  providing  misleading 

information about how a company's products are more environmentally sound. 

68 

 
                                                           
As regards other Commission rules and guidance on the application of Article 101 of the 
Treaty,  a  number  of  guidelines,  notices  and  other  block  exemption  regulations  touch 
upon concepts  and issues also  dealt with in  the HBERs  and Horizontal Guidelines. For 
example, the Article 81(3) Guidelines provide additional guidance on the application of 
the  four  conditions  for  exemption  and  therefore  also  apply  when  carrying  out  an 
individual  self-assessment  of  horizontal  cooperation  agreements  covered  by  the 
Horizontal  Guidelines.  Similarly,  the  VBER  and  Vertical  Guidelines,  as  well  as  the 
TTBER  and  the  Guidelines  on  Technology  Transfer  Agreements,  and  the  Market 
Definition  Notice113 contain  references  to  the  HBERs  and/or  the  Horizontal  Guidelines, 
even though they apply to different types of agreements. 

In  addition,  it  is  necessary  to  assess  whether  other  EU  legislation  with  relevance  for 
horizontal cooperation agreements, in  particular  the EU Merger Regulation, is  coherent 
with the HBERs and Horizontal Guidelines.  

The  Commission  services  asked  stakeholders  in  the  open  public  consultation  and  the 
NCAs  whether  the  HBERs  and  Horizontal  Guidelines  are  in  their  view  coherent  with 
other  legal  instruments  and  policies.  The  Commission  services  also  asked  whether  the 
HBERs  and  Horizontal  Guidelines  are  coherent  with  other  existing  or  upcoming 
legislation or policies at EU or national level.  

5.4.2.  The main findings regarding the coherence of the intervention 

The  evidence  gathered  in  the  evaluation  shows  that  the  HBERs  and  Horizontal 
Guidelines  are  overall  coherent  with  other  Commission  rules  and  guidance  on  the 
application of Article 101 of the Treaty. Nevertheless, the evaluation revealed 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. 

Moreover,  some  respondents  indicated  that  the  coherence  between  the  HBERs  and 
Horizontal  Guidelines,  and  certain  EU  competition  law  regulations,  such  as  the 
Technology Transfer Block Exemption Regulation and the Merger Regulation, could be 
clarified  and  improved.  This  is  equally  the  case  as  regards  coherence  with  other 
Commission  policies  such  as  the  Green  Deal,  initiatives  in  the  field  of  digitisation  and 
data sharing or the renewed EU industrial policy. 

Nearly  all  NCAs  considered  that  the  HBERs  and  Horizontal  Guidelines  are  coherent 
with other instruments and case law. 

113   Commission Notice on the definition of relevant market for the purposes of Community competition 
law, OJ C 372, 9.12.1997, p. 5 (‘Market Definition Notice’). These rules are currently under review. 
For 
at: 
https://ec.europa.eu/competition/consultations/2020_market_definition_notice/index_en.html. 

Commission’s 

website 

details, 

further 

please 

see 

69 

 
                                                           
The evidence gathered during the evaluation suggests that the HBERs and the Horizontal 
Guidelines are generally considered coherent with other Commission rules and guidance 
on  competition,  even  though  there  is  room  for  improvement.  Regarding  the  coherence 
between the HBERs and the Horizontal Guidelines and other policies, it is notable that it 
were the respondents  to  the open public  consultation  who flagged potential  issues. The 
NCAs did not share this view. 

Coherence with other instruments and case law that provide guidance on the 
interpretation of Article 101 of the Treaty 

The  majority  of  respondents  to  the  public  consultation  indicated  that  the  HBERs  and 
Horizontal  Guidelines,  are  coherent  with  other  instruments  and  case  law  that  provide 
guidance  on  the  interpretation  of  Article  101  of  the  Treaty  (e.g.  other  block  exemption 
regulations, the Vertical Guidelines and the Article 81(3) Guidelines).  

However,  several  respondents  raised  coherence  issues  between  the  rules  applicable  to 
horizontal cooperation and vertical agreements. Some respondents pointed out that often 
it is difficult to determine which set of rules is applicable for a specific agreement.  

For  example,  some  respondents  considered  that  R&D  agreements  and  information 
exchanges  are  treated  differently  in  a  horizontal  and  in  a  vertical  context.  In  their 
opinion, pure horizontal relationships are treated in a stricter manner than in the case of 
mixed cooperation (horizontal and vertical). A respondent also mentioned that the clear 
separation  between  horizontal  and  vertical  relations  has  changed  with  the  rise  of 
integrated business models. Another respondent pointed out that the definition of ‘short 
period of time’ is not aligned between the competition rules on vertical agreements and 
the  R&D  BER.  An  additional  respondent  considered  that  the  risk  of  horizontal 
foreclosure, in particular regarding unaffiliated brands,114 should not be addressed in the 
Vertical Guidelines. 

In  addition,  several  respondents  indicated  that  coherence  between  the  HBERs,  together 
with  the  Horizontal  Guidelines  (in  particular  with  standardisation  agreements),  and  the 
TTBER could be improved. 

Nearly all NCAs considered that the HBERs and Horizontal Guidelines are coherent with 
other instruments and case law that provide guidance on the interpretation of Article 101 
of the Treaty. 

However,  some  NCAs  indicated  that  there  was  room  for  improvement,  for  example, 
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 (e.g. case 
law on standard essential patents).  

114   See Guidelines on Vertical Restraints, paragraph 210.  

70 

 
                                                           
Other  comments  referred  to  the  fact  that  the  Horizontal  Guidelines  do  not  distinguish 
consistently  between  horizontal  cooperation  agreements  and  cartels  as  it  is  done  in  the 
Guidelines on the Effect on Trade.115 

Coherence with other EU or national legislation 

The respondents to the public consultation were more critical as regards coherence with 
other existing and/or upcoming legislation or policies at EU level, with more respondents 
believing  that  there  is  a  lack  of  coherence  between  the  HBERs  and  Horizontal 
Guidelines, and these instruments and policies.  

Several respondents highlighted that it is difficult to combine the provisions of the R&D 
BER  and  Horizontal  Guidelines  with  the  provisions  of  other  competition  rules,  in 
particular  the  EU  Merger  Regulation  (e.g.  discrepancies  in  the  definition  of  several 
concepts and the market share thresholds), Article 102 of the Treaty and state aid rules. 

Outside  competition  law,  the  most  recurrent  comments  received  by  respondents  as 
regards  areas  in  which  the  antitrust  policy  as  laid  down  in  the  HBERs  and  Horizontal 
Guidelines is not sufficiently coherent with other Commission policies concerned, such 
as the Green Deal, the on-going initiatives in the field of digitisation and data sharing or 
the EU industrial policy. 

In  addition,  other  respondents  pointed  out  that  the  HBERs  and  Horizontal  Guidelines, 
could also be better articulated vis-à-vis the Geo-Blocking Regulation116 (including with 
regard  to  retail  alliances),  the  Platform  to  Business  Regulation 117 ,  the  EU  policy 
initiatives  on  labour  law  (e.g.  collective  bargaining  for  self-employed)  or  the  Directive 
(EU) 2019/1023 on preventive restructuring frameworks118 (e.g. information exchanges).  

The  views  of  NCAs  were  more  positive  with  most  NCAs  considering  that  the  HBERs 
and the Horizontal Guidelines are coherent with other existing or upcoming legislation or 
policies at EU or national level. Two NCAs also noted that the assessment of horizontal 
cooperation  agreements  promoting  sustainability  goals  should  be  taken  into  account 
better.  

115   Commission’s Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, 

OJ C 101, 27.4.2004, p. 81 (‘Guidelines on the Effect on Trade’). 

116   Regulation  (EU)  2018/302  of  the  European  Parliament  and  of  the  Council  of  28  February  2018  on 
addressing  unjustified  geo-blocking  and  other  forms  of  discrimination  based  on  customers’ 
nationality,  place  of  residence  or  place  of  establishment  within  the  internal  market,  OJ  L  60I, 
2.3.2018, p. 1 (‘Geo-Blocking Regulation’).  

117   Regulation  (EU)  2019/1150  of  the  European  Parliament  and  of  the  Council  of  20  June  2019  on 
intermediation  services, 

transparency  for  business  users  of  online 

promoting  fairness  and 
PE/56/2019/REV/1, OJ L 186, 11.7.2019, p. 57. 

118   Directive  (EU)  2019/1023  of  the  European  Parliament  and  of  the  Council  of  20  June  2019  on 
preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to 
increase  the  efficiency  of  procedures  concerning  restructuring,  insolvency  and  discharge  of  debt, 
PE/93/2018/REV/1, OJ L 172, 26.6.2019, p. 18. 

71 

 
                                                           
5.5. EU added value 

5.5.1.  The evaluation question 

The question of whether the HBERs and Horizontal Guidelines, provide added value as 
an intervention at EU level has to be answered against the background that competition 
law is an area where the EU has exclusive competence. This means that the EU alone is 
allowed to legislate and adopt binding acts in this area, whereas the Member States are 
only allowed to legislate if empowered by the EU to implement these acts.  In addition, 
the Empowerment Regulation of 1971 grants only the Commission, and not the Member 
States,  the  power  to  adopt  block  exemption  regulations  for  certain  categories  of 
horizontal cooperation agreements.  

Therefore, in the absence of the HBERs and Horizontal Guidelines, which is the relevant 
point  of  comparison  for  the  assessment,  stakeholders  would  be  deprived  of  the  safe 
harbour  that  only  an  EU  intervention  can  provide.  Instead  of  being  able  to  rely  on  a 
simple set of EU rules, they would have to rely on other instruments when self-assessing 
the compliance of their horizontal cooperation agreements with Article 101 of the Treaty. 

5.5.2.  The main findings regarding the EU added value of the intervention 

Based  on  the  evidence  gathered,  the  HBERs  and  Horizontal  Guidelines  provide  EU 
added  value.  With  the  safe  harbours  from  EU  competition  law,  which  can  only  be 
granted at EU level, the HBERs offer uniform conditions for exemption as compared to 
more  general  and  nationally  fragmented  guidance  on  the  application  of  Article  101  of 
the Treaty. In addition, in a significant number of Member States there are no national 
guidelines available. 

The  evidence  gathered  in  the  evaluations  allows  the  Commission  services  to  establish 
that the HBERs and Horizontal Guidelines offer EU added value. 

The majority of respondents to the public consultation indicated that the R&D BER and 
the  Horizontal  Guidelines  have  added  value  in  the  assessment  of  the  compatibility  of 
horizontal cooperation agreements with Article 101 of the Treaty. The results were less 
clear  with  regard  to  the  Specialisation  BER.  The  majority  of  respondents  to  the  public 
consultation  were  unable  to  provide  a  view,  while  a  smaller  number  of  respondents 
considered that the Specialisation BER has added value.  

Many respondents explained that the HBERs and Horizontal Guidelines have contributed 
to the uniform application of these rules  across the EU. Moreover, respondents pointed 
out  that  the  HBERs  and  Horizontal  Guidelines  provide  a  clear  benefit  and  a  well-
balanced approach, in particular, given that there is limited case law available at EU and 
national  level.  One  respondent  stated  that  the  most  important  contribution  provided  by 
the Horizontal Guidelines is a methodology for the self-assessment of agreements. 

However,  several  respondents  pointed  out  that  there  was  room  for  improvement.  They 
indicated  that  the  ongoing  review  of  the  HBERs  and  Horizontal  Guidelines  was  an 
opportunity  to  update  these  rules  and  provide  greater  legal  certainty,  especially  by 

72 

 
reflecting  recent  market  developments  such  as  digitisation,  sustainability  and 
globalisation.  Another  respondent  indicated  that  the  Commission  and  the NCAs  should 
focus their attention on developing consistent case law across the Union. 

Only two respondents to the public consultation considered that the Specialisation BER 
(one respondent) and the Horizontal Guidelines (one respondent) did not add value. The 
latter  respondent  pointed  out  that  the  Horizontal  Guidelines  remain  occasionally  vague 
and are not as specific and clear as needed.  

A  slight  majority  of  the  NCAs  considered  that  the  R&D  and  the  Specialisation  BERs 
have  added  value  in  the  assessment  of  the  compatibility  of  horizontal  cooperation 
agreements with Article 101 of the Treaty. The other NCAs were not able to provide a 
view. The response regarding the Horizontal Guidelines was clearer, the large majority of 
the NCAs indicated that these guidelines have provided added value.  

In  their  comments,  several  NCAs  referred  to  the  contribution  of  the  HBERs  and  the 
Horizontal Guidelines to the uniform application of competition law across the EU and 
how they offer a simple and effective self-assessment tool and help NCAs focus on other 
agreements that are more detrimental to competition. 

Furthermore, in line with the respondents to the public consultation, NCAs stressed the 
added value of the HBERs and the Horizontal Guidelines as tools assisting in the proper 
interpretation and application of EU competition law, particularly in view of the limited 
case law and decisional practice of the Commission and NCAs. 

6.  CONCLUSIONS 

Based  on  the  assessment  developed  in  the  previous  sections,  this  section  presents  the 
conclusions on the evaluation of the HBERs, together with the Horizontal Guidelines.  

The  scope  of  the  evaluation  covers  the  HBERs  and  the  Horizontal  Guidelines,  in  their 
entirety and extends to all EU Member States.  

The  evaluation  is  based  on  evidence  gathered  from  various  sources,  including 
stakeholder  views  obtained  through  an  open  public  consultation.  This  evidence  was 
complemented  and  cross  checked  with  the  Commission’s  and  NCAs’  own  experiences 
and additional research performed as part of an (external) evaluation support study. The 
evaluation  was  subject  to  certain  limitations,  which  did  not,  however,  have  any 
meaningful impact on the results of the evaluation. In particular, (i) it was not possible to 
gather  reliable  quantitative  evidence  on  the  HBERs  and  the  Horizontal  Guidelines’ 
related  costs  and  benefits,  (ii)  there  was  a  certain  lack  of  representativeness  of 
stakeholder  feedback  due  to  the  voluntary  nature  of  participation  in  the  public 
consultation, and (iii) consumer views were lacking to some extent, likely due to the fact 
that the HBERs and the Horizontal Guidelines are technical pieces of legislation and that 
consumers  are  neither  a  party  to  horizontal  cooperation  agreements,  nor  privy  to  the 
conditions that they contain.  

73 

 
 
Other  limitations  concerned  the  relatively  low  number  of  substantive  replies  from 
stakeholders to the public consultations and the evaluation study, the limited decisional 
practice and case law of the Commission, the NCAs and EU/national courts concerning 
the  assessment  of  horizontal  cooperation  agreements  in  the  last  decade,  as  well  as  the 
limited  number  of  additional  sources  of  information  (e.g.  national  guidelines/guidance, 
specialised articles, etc.). 

Overall, the evidence gathered in the evaluation suggests that the HBERs, together with 
the  Horizontal  Guidelines,  are  useful  instruments  and  remain  relevant  for  stakeholders. 
While  the  evidence  gathered  from  stakeholders  and  NCAs  in  the  evaluation  was  not 
conclusive on the costs that the application of the rules entail, the evidence does establish 
that the costs are considered proportionate to the benefits. The evidence from all sources 
also suggests that the intervention has clear EU added value. The evaluation has therefore 
shown that it is not in the interest of stakeholders to let the intervention lapse.  

Nonetheless, the evaluation has identified a number of issues, in particular as regards the 
clarity  of  the  rules  and  their  ability  to  address  new  market  developments,  which  limit 
notably the effectiveness, efficiency and coherence of the intervention. Overall, evidence 
gathered  from  all  sources  strongly  suggests  that  the  intervention  should  not  be  simply 
renewed  without  a  revision.  An  overview  of  the  key  issues  raised  in  this  regard  is 
mentioned below. 

Some  of  the  provisions  in  the  HBERs  and  the  Horizontal  Guidelines  are  considered 
unclear, overly strict and difficult to interpret. This applies in particular to the R&D BER 
and  provisions  in  the  chapters  of  the  Horizontal  Guidelines  on  information  exchange, 
R&D,  production  and  commercialisation  agreements.  Many  companies,  business 
associations, law firms and NCAs have pointed at improvements that can be made to the 
texts to ensure that these instruments become clearer and less ambiguous. 

The  evidence  gathered  notably  from  stakeholders,  NCAs  and  through  the  evaluation 
support  study  suggests  that  the  use  of  safe  harbours  in  the  form  of  market  share 
thresholds  in  the HBERs  and the Horizontal Guidelines  increases legal  certainty. Some 
companies, business associations and law firms consider that the market share thresholds 
in  the  HBERs  and  Horizontal  Guidelines  are  too  low  to  exempt  all  agreements  that 
comply  with  Article  101  of  the  Treaty.  The  arguments  provided  by  stakeholders  are 
however  not  conclusive.  In  this  respect,  the  Commission  needs  to  balance  two  of  the 
special  objectives  of  the  intervention,  notably  to  ensure  an  effective  protection  of 
competition and the provision of adequate legal certainty for companies. 

The  evaluation  has  also  shown  that  notably  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.  This  applies 
notably to R&D but also to digital markets that are characterised by the presence of many 
‘zero  price  markets’  which  encumbers  product  market  definition  and  market  share 
calculation. 

Evidence provided by some companies and business associations suggests that the scope 
of the Specialisation BER is too narrow and should be expanded to cover additional types 

74 

 
of  horizontal  cooperation  agreements.  Some  companies  and  business  associations 
consider  that  the  scope  of  the  R&D  BER  is  too  wide  in  so  far  as  it  includes  ‘paid-for’ 
R&D.  As  there  is  no  consensus  on  these  matters,  a  further  assessment  is  needed  of 
possible  improvements  that  could  increase  the  effectiveness  of  the  intervention  in  this 
regard. 

The evaluation also identified areas of the rules that do not refer to enforcement decisions 
and case law issued since the adoption of the rules. The evidence provided by all types of 
stakeholders  mention  in  this  regard  both  case  law  from  the  Court  of  Justice  of  the 
European Union as well as from national courts. Also, in some cases, stakeholders have 
pointed at the decisional practice of the Commission or certain NCAs that could serve as 
examples for additional guidance. This comment applies in particular to the R&D BER 
and  the  corresponding  chapter  on  R&D  agreements  in  the  Horizontal  Guidelines,  the 
chapters  on 
joint  purchasing,  commercialisation  and 
standardisation  agreements.  The  analysis  suggests  updating  the  intervention  to  ensure 
that guidance from relevant case law is reflected appropriately. 

information  exchange, 

The  evaluation  sought  in  particular  the  views  of  stakeholders  regarding  other  types  of 
horizontal  cooperation  agreements  not  explicitly  mentioned  in  the  HBERs  or  the 
Horizontal Guidelines. While the Horizontal Guidelines were conceived as a framework 
that  would  also  provide  general  guidance  on  the  application  of  Article  101(3)  of  the 
Treaty to horizontal cooperation agreements not explicitly mentioned in a specific BER 
or a chapter of the guidelines, the evaluation  shows that all types of stakeholders  share 
the  view  that  the  intervention  does  not  provide  sufficient  legal  certainty  for  such  other 
types of horizontal cooperation agreements. This lacuna influences both the effectiveness 
and the relevance of the intervention. Addressing these gaps and areas where the rules are 
no  longer  adapted  to  trends  and  developments  that  occurred  since  2010  would  also 
improve their ability to simplify administrative supervision by NCAs and national courts.  

The  evidence  gathered  from  all  sources  suggests  that  notably  guidance  on  agreements 
pursuing  sustainability  goals  is  lacking.  Such  type  of  agreements  are  currently  not 
defined  nor  addressed  explicitly  in  the  Horizontal  Guidelines  and  this  results  in  legal 
uncertainty.  Improvements  are  required  to  increase  legal  certainty  on  sustainability 
initiatives  and to  maintain the relevance of the  intervention.  The  evidence  does  not  yet 
allow for a conclusion on the types of benefits that can be weighed against the possible 
restrictive effects on competition of such agreements. Further assessment is necessary in 
this regard. 

In  addition,  the evidence gathered overall demonstrates that stakeholders  lack  guidance 
on  many  of  the  new  cooperation  models  that  have  appeared  as  a  result  of  digitisation. 
Information exchange is often mentioned in this regard, as cooperation in digital markets 
has expanded the possibilities to share and pool data. Some evidence also points at legal 
uncertainty regarding network sharing agreements which often involve large investments. 
Additional  guidance  should  be  considered  for  these  areas  to  ensure  that  stakeholders 
involved  in  such  types  of  horizontal  cooperation  benefit  from  the  necessary  legal 
certainty to self-assess their agreements and for the intervention to remain relevant.  

75 

 
The  lack  of  legal  certainty  provided  by  certain  chapters  of  the  Horizontal  Guidelines 
results  in  additional  costs  for  companies  that  are  self-assessing  their  cooperation 
agreements. The evaluation allowed for an identification of certain areas in the chapters 
on  information  exchange,  commercialisation  and  standardisation  agreements  that 
currently  do  not  provide  sufficient  legal  certainty.  Updates  and  improvements  of  these 
chapters  should  ensure  that  the  costs  of  applying  the  Horizontal  Guidelines  remain 
proportionate to the benefits of the intervention. 

The  evidence  gathered  in  the  evaluation  shows  that  the  HBERs  and  Horizontal 
Guidelines are overall  coherent  both with  other  Commission  rules and  guidance on the 
application of Article 101 of the Treaty. Still, the evidence makes clear that there is room 
for improvement, in particular regarding the coherent treatment of horizontal cooperation 
and  vertical  agreements.  Moreover,  coherence  between  the  HBERs  and  Horizontal 
Guidelines  on  the  one  hand,  and  certain  EU  competition  law  regulations,  such  as  the 
Technology Transfer Block Exemption Regulation and the EU Merger Regulation on the 
other  hand,  could  be  improved.  Coherence  with  other  Commission  policies  such  as 
climate policy, initiatives in the field of digitisation and data sharing or the renewed EU 
industrial policy, could also be clarified and improved. 

***

76 

 
 
ANNEX 1: PROCEDURAL INFORMATION 

1.1.  LEAD DG, DeCIDE PLANNING/CWP REFERENCES 

The  Directorate-General  for  Competition  of 
the  European  Commission  (‘DG 
Competition’)  is  the  lead  DG  for  the  evaluation  of  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 119 (‘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 agreements120 (‘Specialisation 
BER’)  (together  ‘HBERs’).  The  HBERs  entered  into  force  on  1 January  2011  and  will 
expire on 31 December 2022.  

The Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the 
European  Union  to  horizontal  cooperation  agreements  (‘Horizontal  Guidelines’)121 are 
also the object of this evaluation, insofar as they are inherently linked to the HBERs, they 
refer to their provisions and inform their application and interpretation  

review  was 

The 
‘PLAN/2019/5721’.122  

registered 

in 

the  Decide  Planning  with 

the 

reference 

1.2.  ORGANISATION AND TIMING 

The evaluation of the HBERs, together with the Horizontal Guidelines, was launched on 
19  July  2019  in  order  to  ensure  sufficient  time  for  carrying  out  the  procedural  steps 
required  by  the  Commission’s  Better  Regulation  Guidelines. 123  The  evaluation 
roadmap,  which  set  out  the  background  of  the  evaluation  as  well  as  its  purpose  and 
scope, was published on 5 September 2019. The evaluation roadmap also presented the 
consultation  activities  that  would  be  conducted  by  the  Commission  services  during  the 

119   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  categories  of  research  and 
development agreements, OJ L 335, 18.12.2010, p. 36 (‘R&D Block Exemption Regulation’ or ‘R&D 
BER’). 

120   Commission  Regulation  (EU)  No  1218/2010  of  14  December  2010  on  the  application  of  Article 
101(3)  of  the  Treaty  to  categories  of  specialisation  agreements,  OJ  L  335,  18.12.2010,  p.  43 
(‘Specialisation  Block  Exemption  Regulation’  or  ‘Specialisation  BER’  and  together  with  the  R&D 
BER are referred as ‘Horizontal Block Exemption Regulations’ or the ‘HBERs’). 

121   Commission’s Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the 
European Union to horizontal co-operation agreements, OJ C11, 14.1.2011, p. 1; Corrigenda OJ C33, 
2.2.2011, p. 20. 

122   Commission’s  Better  Regulation  Portal  at  https://intragate.ec.europa.eu/decide/sep/entrance?view-

dossier-details-id=DORSALE-DOSSIER-2018-24941. 

123   Commission’s Better Regulation Guidelines, SWD(2017) 350, p. 3. 

77 

 
 
 
                                                           
evaluation (notably an open public consultation, an external evaluation support study and 
a consultation of the NCAs) and explained the data collection methodology that would be 
followed to gather relevant information for the purpose of the evaluation.  

The evaluation of the HBERs, together with the Horizontal Guidelines, was carried out in 
close  cooperation  with  an  Inter-service  Steering  Group  (‘ISG’),  comprising 
representatives  from  interested  Commission  Directorates  and  services.  The  ISG 
contained  representatives  of  the  Directorates-General  SANTE,  ENER,  JRC,  RTD, 
REGIO,  CNECT,  CLIMA,  ECFIN,  GROW,  TRADE,  MARE,  AGRI,  ENV,  EAC 
MOVE and FISMA, as well as the Secretariat-General and the Legal Service, which are 
associated  by  default  to  any  such  initiative.  The  ISG  was  consulted  on  the  evaluation 
roadmap, the consultation strategy and the open public consultation aimed at collecting 
the views of the stakeholders in the context of the public consultation and the NCAs in 
the context of a targeted consultation. The ISG also reviewed the summary of the results 
of  the  public  consultation  and  of  the  feedback  of  the  NCAs.  The  ISG  was  likewise 
consulted on the tender specifications and the milestones for the evaluation support study 
and the Staff Working Document.  

The evaluation of the HBERs, together with the Horizontal Guidelines, was carried out in 
close  cooperation  with  the  NCAs,  which  were  consulted  on  the  milestones  for  the 
evaluation support study and the Staff Working Document. 

The different milestones of the evaluation phase are reflected in the table below:  

Timing 

19 July 2019 

August 2019 

5 September 2019 

10 October 2019 

6 November 2019 

10 December 2019 

20 February 2020  

- 
- 

- 
- 
- 
- 

- 
- 

Step 

Launch of the evaluation in the Commission’s Decide Planning 

Inform ISG in writing on: 
- timing of the review (evaluation phase) 
- draft evaluation roadmap 

Publication of the evaluation roadmap (4-weeks comments period) 
1st ISG Meeting with the following agenda items:  
- feedback from public consultation on Evaluation Roadmap; 
- draft evaluation questionnaire for public consultation; 
- draft consultation strategy, and 
- draft intervention logic and the evaluation matrix. 

Publication  of  the  open  public  consultation  (14-weeks  comments 
period) 

Dedicated ISG meeting to discuss standardisation agreements and 
standard essential patents 
2nd ISG Meeting with the following agenda items:  
- presentation of the comments on the evaluation roadmap, and 
- terms of reference for evaluation support study (after prior 
consultation) 

19 March 2020 

7 April 2020 

Signature of the contract of the evaluation support study 

Publication of the summary report of the public consultation 

78 

 
Timing 

15 September 2020 

Step 
1st Draft of the final report on the evaluation support study 

25 September 2020 

Interim report on the evaluation support study 

19 October 2020 

20 October 2020 

- 
- 

- 
4  and  20  November 
2020 

17 December 2020 

- 

- 
- 

- 
- 

- 

18 December 2020 

10 February 2021 

24-26 February 2021 

9 March 2021 

12 March 2021 

19 March 2021 

30 March 2021 

4 May 2021 

6 May 2021 

Publication of the summary report of the NCA contributions 
3rd  ISG  Meeting  (video-conference)  with  the  following  agenda 
items:  
- presentation of the summary report of the NCA contributions;  
- update on the interim report and the first draft final report of the 
evaluation support study, and  
- update on the sustainability work stream 
2nd Draft of the final report on the evaluation support study (parts I 
and II) 

Publication  of  JRC’s  2020  EU  Survey  on  Industrial  R&D 
Investment Trends  

Circulate to ISG and NCAs (via e-mail): 
- the 2nd draft of the final report on the evaluation support study 
3rd Draft of the final report on the evaluation support study 
Circulate to ISG and NCAs (via e-mail):  
- the draft Staff Working Document 
- the final report on the evaluation support study 
4th  ISG  Meeting  (video-conference)  with  the  following  agenda 
item:  
- consultation on the draft Staff Working Document 
- presentation of the final report on the evaluation support study 

Circulate to ISG (via e-mail):  
- the revised draft Staff Working Document 

Circulate to ISG (via e-mail):  
- the 2nd revised draft Staff Working Document 
Launch of the Inter-Service Consultation (15-working days period) 

Publication of the final report on the evaluation support study 

Publication of SWD 

1.3.  EXTERNAL EVALUATION SUPPORT STUDY 

As  explained  in  section  4.1  above,  the  evaluation  was  supported  by  an  external 
evaluation  support  study.  The  objective  of  the  study  is  to  provide  qualitative  and 
quantitative  evidence  on  the  effectiveness,  efficiency  and  relevance  of  the  HBERs  and 
the Horizontal Guidelines. In particular, the study aims at assessing whether and to what 
extent  the  HBERs  and  the  Horizontal  Guidelines  are  in  line  with  recent  market 
developments.  The  study  also  included  an  analysis  of  the  enforcement  action  of  the 
NCAs with  regard to  horizontal cooperation  agreements, as well  as case  studies on the 
costs and benefits of applying the HBERs, together with the Horizontal Guidelines.  

79 

 
The evaluation study was tendered on the basis of DG Competition’s framework contract 
for evaluations and impact assessments in the field of antitrust. The framework contract 
is based on the cascade procedure, according to which a request for an offer for a specific 
contract is made to the first placed tenderer, who can then decide to submit an offer or to 
reject  the  request.  In  the  latter  case,  the  request  is  passed  on  to  the  second  placed 
tenderer.  

The first placed tenderer was a consortium led by VVA Brussels (an Italian-based public 
policy  consultancy),  which  includes  LE  Europe  Limited,  Grimaldi  Studio  Legale  sprl, 
WIK-Consult GMBH and the Österreichisches Institut für Wirtschaftsforschung (WIFO).  

The  first  placed  tenderer  was  invited  to  submit  an  offer  for  the  evaluation  study  on  7 
February 2020. On the basis of this offer, the Commission  services signed the contract 
for the evaluation study with the consortium led by VVA on 19 March 2020 for a period 
of  (initially)  26  weeks.  The  contractor  submitted  the  interim  report  of  the  evaluation 
study  to  the  Commission  in  August  2020.  The  contractor  submitted  several  draft  final 
reports  between  September  2020  and  February  2021,  and  the  final  report  on  29  April 
2021. The ISG was consulted on the interim documents related to the evaluation study.  

80 

 
  
ANNEX 2: STAKEHOLDER CONSULTATION 

2.1.  INTRODUCTION 

This annex presents the results of the consultation activities performed in the context of 
the  evaluation  of  the  (i)  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 agreements124 (‘R&D 
BER’) and (i) 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 125  (‘Specialisation  BER’)  (together 
‘HBERs’), together with the Guidelines on the applicability of Article 101 of the Treaty 
on  the  Functioning  of  the  European  Union  to  horizontal  cooperation  agreements 
(‘Horizontal Guidelines’). 

The  consultation  strategy  for  the  evaluation 126  indicates  that  the  objective  of  the 
consultation process is to deliver an in-depth evaluation of high quality concerning key 
competition issues arising in horizontal cooperation agreements from the perspective of 
the businesses and of EU competition law enforcement.  

2.2.  THE CONSULTATION ACTIVITIES 

The evaluation of the HBERs, together with the Horizontal Guidelines involved different 
consultation activities, namely:  

  a consultation on the evaluation roadmap; 
  an open public consultation based on an online questionnaire; 
  a targeted consultation of national competition authorities. 

These consultation activities aimed to gather evidence on the functioning of the HBERs 
and  the  Horizontal  Guidelines  since  their  adoption  in  2010  to  inform  the  decision  on 
whether the Commission should let them elapse, prolong their duration or revise them in 
order to take proper account of new market developments. To that end, the Commission 
services focused in particular on trying to understand which areas of the rules have not 

124   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  categories  of  research  and 
development agreements, OJ L 335, 18.12.2010, p. 36. 

125   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  categories  of  specialisation 
agreements, OJ L 335, 18.12.2010, p. 43. 

126   The consultation strategy is available on the dedicated HBERs review webpage on DG Competition’s 

website at: https://ec.europa.eu/competition/consultations/2019_hbers/index_en.html. 

81 

 
 
 
                                                           
functioned  well  or  have  not  functioned  as  well  as  they  could  have,  and  the  underlying 
reasons.  

Despite being outside the scope of the evaluation, many stakeholders provided input on 
the  changes  they  consider  necessary  to  improve  the  functioning  of  the  rules  and  what 
these changes should look like. This input has nevertheless been analysed and taken into 
account to the extent that it provided useful insights into why the rules are considered not 
to have functioned as well as they could have. Any reference to such proposed changes 
by stakeholders in the following summaries of the various consultation activities should 
therefore be understood in this context. 

2.3.  STAKEHOLDER GROUPS COVERED BY THE CONSULTATION ACTIVITIES 

Based  on  a  mapping  exercise  relying  on  the  Commission’s  experience  of  enforcing 
Article 101 of the Treaty and the information gathered through the feedback received on 
the  evaluation  roadmap,  the  Commission  services  identified  the  following  stakeholder 
groups as being similarly interested in (and also similarly affected by) the evaluation of 
the HBERs, together with the Horizontal Guidelines. 

From a business perspective, there is a very diverse stakeholder group with interest in the 
evaluation process, namely (i) companies with business operations in the EU, engaged in 
various  sectors  of  the  economy,  including  companies  that  carry  out  research  and 
companies  engaged  in  production  activities;  (ii)  law  firms  advising  them  on  related 
competition  issues  will  have  a  comparable  interest;  (iii)  industry  associations,  (iv)  and 
academics  with  a  focus  on  EU  competition  law  and  notably  on  horizontal  cooperation 
agreements. 

From  an  enforcement  perspective,  the  experience  gained  by  the  national  competition 
authorities  of  the  Member  States  in  applying  the  HBERs,  together  with  the  Horizontal 
Guidelines, was considered of particular interest for the evaluation. 

2.4.  CONSULTATION ON THE EVALUATION ROADMAP 

The  evaluation  roadmap  was  published  on  the  Commission’s  initiatives  website127 on  5 
September 3019 after which a four-week consultation was open for public feedback until 
3 October 2019. 

2.4.1.  Overview of the respondents 

The Commission services received 13 responses as feedback to the evaluation roadmap. 
The  large  majority  of  the  entities  that  provided  feedback  were  business  associations  (9 
responses out of 13). Feedback was also received from two companies, one law firm and 
one NGO. As to the breakdown by country of origin, 5 respondents were established in 

127   Commission’s 

better 

regulation 

initiatives  website: 

https://ec.europa.eu/info/law/better-

regulation/have-your-say/initiatives/11886-Evaluation-of-EU-competition-rules-on-horizontal-
agreements. 

82 

 
                                                           
Belgium, 3 were established in Germany and the other four respondents were established 
in France, the Netherlands, Spain and Sweden.  

2.4.2.  Overview of the submissions 

The  feedback  provided  showed  overall  support  for  the  Commission’s  initiative  to 
perform the evaluation. Stakeholders generally indicated that the HBERs, together with 
the  Horizontal  Guidelines,  should  be  maintained,  but  reviewed,  for  example  to  address 
issues that have arisen in its interpretation, as well as new market developments.  

Stakeholders  raised  a  number  of  issues  as  regards  the  functioning  of  the  rules.  With 
regard  to  the  HBERs,  stakeholders  indicated  that  the  Commission  could  take  this 
opportunity  to  provide  more  clarity  on  the  rules,  review  the  exemption  criteria,  the 
market shares thresholds and ensuring the coherence of these rules with other EU rules 
and policies.  

In addition, concerning the Horizontal Guidelines, stakeholders indicated that this was a 
chance  to  provide  further  guidance  on  information  exchanges,  joint  purchasing 
agreements  (including  retail  alliances),  standardisation  (including  FRAND  terms  and 
conditions), as well as addressing the challenges brought by major market developments 
such as sustainability and digitisation.  

On  the  consultation  process,  stakeholders  suggested  increasing  the  deadline  for 
responding to  the public consultation,  making sure that the public  consultation  allowed 
for  submission  of  supporting  documents  and  ensuring  that  any  changes  to  the  HBERs 
and/or the Horizontal Guidelines are based on empirical, market-based evidence.  

Finally,  some  stakeholders  expressed  an  interest  in  participating  in  other  consultation 
activities (e.g. stakeholder workshop), as well as an interest in having other channels of 
communication  with  the  Commission  (in  particular  allowing  for  the  transmission  of 
confidential information, e.g. bilateral discussions). 

2.5.  SUMMARY OF THE OPEN PUBLIC CONSULTATION  

A summary report of the open public consultation was published on 7 April 2020.128 

2.5.1.  Introduction 

The  Commission  services  ran  an  open  public  consultation  on  the  evaluation  of  the 
HBERs, together with the Horizontal Guidelines, from 6 November 2019 to 12 February 
2020.  

The  open  public  consultation  targeted  both  citizens  and  stakeholders  in  order  to  gather 
views  on  the  functioning  of  the  HBERs  and  the  accompanying  Horizontal  Guidelines. 

128   The factual summary of the contributions received in the context of the open public consultation on 
the  evaluation  of  the  Horizontal  Block  Exemption  Regulations,  available  at  Commission’s  website: 
https://ec.europa.eu/competition/consultations/2019_hbers/HBERs_consultation_summary.pdf 
(‘Factual summary of the open public consultation’). 

83 

 
                                                           
The questionnaire was published in English, French and German. Participants could reply 
in any of the 24 official languages of the Union.  

The  public  consultation  was  also  promoted  through  various  stakeholder  meetings, 
presentations at conferences and the DG Competition’s website. 

The public consultation took the form of an online survey, with a mix of closed and open 
questions, allowing for the submission of supporting documents.  

The Commission services received 77 contributions to the public consultation submitted 
through the online survey. It also received 8 position papers in the context of the public 
consultation.  These  largely  echoed  the  issues  raised  in  the  contributions  to  the  public 
consultation. 

The  statistics  computed  in  this  summary  are  based  only  on  contributions  to  the  public 
consultation  submitted  through  the  online  questionnaire.  The  input  has  been  analysed 
using a data analysis tool,129 complemented by manual analysis.  

Due to a technical failure of the uploading option provided in the online survey tool, in 
several  instances  the  Commission  services  had  to  collect  and  upload  manually  the 
attachments  that  respondents  intended  to  submit  with  their  reply.  This  was  the  main 
reason  for  the  delay  with  which  the  contributions  to  the  public  consultation  were 
published on the Better Regulation Portal.  

2.5.2.  Profile of respondents to the open public consultation 

Among  the  77  respondents,  there  are  3  academic  and  research  institutions,  30  business 
associations, 25 companies, 2 non-governmental organisations, 1 public authority, 1 EU 
citizen,  1  trade  union,  and  14  others  (8  of  which  are  law  firms). 130 The  majority  of 
contributions were submitted in English, German and French.  

The distribution of replies across organisation size (76 respondents apart from the private 
citizen)  is  tilted  towards  large  organisations,  with  replies  from  40  large  organisations 
(250  or  more  employees),  10  medium  (50  to  249  employees),  15  small  (10  to  49 
employees) and 12 micro (1 to 9 employees) organisations. 

Across  organisation  scope,  the  distribution  of  replies  is  tilted  towards  international 
organisations, with 52 international (68%) and 24 national (32%) organisations. 

129   The tool used is Doris Public Consultation Dashboard, an internal Commission tool for analysing and 
visualising  replies  to  public  consultations.  It  relies  on  open-source  libraries  using  machine-learning 
techniques  and  allows  for  the  automatic  creation  of  charts  for  closed  questions,  the  extraction  of 
keywords  and  named  entities  from  free-text  answers  as  well  as  the  filtering  of  replies,  sentiment 
analysis and clustering. 

130   Some  respondents  mistakenly  classified  themselves  incorrectly  (for  instance,  some  law  firms 
classified  themselves  as  business  associations,  while  in  fact  they  classify  as  ‘others’).  The 
Commission services corrected these mistakes for the purposes of  this summary and established the 
statistics on the basis of the corrected dataset. 

84 

 
                                                           
Business associations that responded either represent the interests of national members in 
specific industry sectors or focus their activities on a specific sector but have members in 
several  Member  States  or 
the 
telecommunications sector.  

the  entire  EU,  for 

those  active 

instance 

in 

Among  the  25  companies  that  responded  to  the  consultation,  21  companies  were 
international  (84%)  and  4  were  national  (16%)  in  scope.  The  activities  of  the 
international  companies  typically  cover  several  EU  Member  States,  with  each  Member 
State having at least 5 respondent companies operating there. Of the national companies, 
2 operate in Germany, another one in Italy and one in Lithuania. 

The  law  firms  represent  the  interests  of  several  clients.  These  respondents  have  their 
headquarters in Belgium, France, the United Kingdom and the United States but tend to 
have clients in several Member States and beyond.  

The  academic  and  research  institutes  that  responded  to  the  consultation  come  from 
Belgium,  Germany  and  Italy.  All  3  share  a  specific  interest  in  intellectual  property 
licensing.  

The trade union that responded is an umbrella organisation for trade unions, representing 
90  national  confederations  and  10  sectoral  federations  from  38  countries,  and  the 
interests of the 2 non-governmental organisations lie mainly in the area of fair trade. 

The  companies  that  responded  to  the  public  consultation  cover  several  sectors  of  the 
European  economy. 131  Table  6  provides  an  overview  of  the  distribution  of  the 
companies/business organisations across the 2-digit NACE Rev.2 code.132 

Table  6  –  Distribution  of  the  companies/business  organisations  across  the  2-
digit NACE Rev.2 code133 

NACE Code 

06 
19 
20 
23 
26 
27 
28 
29 
30 

Extraction of crude petroleum and natural gas 
Manufacture of coke and refined petroleum products 
Manufacture of chemicals and chemical products 
Manufacture of other non-metallic mineral products 
Manufacture of computer, electronic and optical products 
Manufacture of electrical equipment 
Manufacture of machinery and equipment n.e.c. 
Manufacture of motor vehicles, trailers and semi-trailers 
Manufacture of other transport equipment 

Count 
1 
1 
2 
1 
7 
1 
1 
2 
1 

131   Many companies indicated more than one sector. 
132   Eurostat  - Methodologies and Working paper, ‘NACE Rev. 2 - Statistical classification of economic 
at 

activities 
https://ec.europa.eu/eurostat/documents/3859598/5902521/KS-RA-07-015-EN.PDF 

Community’, 

European 

available 

2008, 

the 

in 

133   Open public consultation, question 2.13. 

85 

 
                                                           
NACE Code 

35 
42 
46 
47 
49 
58 
60 
61 
62 
63 
64 
71 
72 
73 

Electricity, gas, steam and air conditioning supply 
Civil engineering 
Wholesale trade, except of motor vehicles and motorcycles 
Retail trade, except of motor vehicles and motorcycles 
Land transport and transport via pipelines 
Publishing activities 
Programming and broadcasting activities 
Telecommunications 
Computer programming, consultancy and related activities 
Information service activities 
Financial service activities, except insurance and pension funding 
Architectural and engineering activities; technical testing and analysis 
Scientific research and development 
Advertising and market research 

Source: Factual summary of the open public consultation, p. 4 (Table 1). 

Count 
3 
1 
1 
5 
2 
2 
3 
6 
5 
1 
1 
1 
2 
1 

2.5.3.  Horizontal cooperation agreements of the respondents to the open 

public consultation 

Out of the 25 companies that responded to the consultation: 13 companies participated in 
R&D cooperation, 7 were parties to cooperative production/specialisation agreements, 10 
were  involved  in  information  sharing  agreements,  10  participated  in  purchasing 
cooperation,  7  in  commercialisation  agreements,  11  in  standardisation  cooperation 
agreements and 8 companies indicated that they participated in other types of agreements 
(e.g.  sustainability  agreements,  infrastructure  sharing  agreements,  sharing  of  logistic 
facilities, etc.).  

A limited number of companies relied upon the exemptions provided by the R&D BER 
(8  companies)  and  by  the  Specialisation  BER  (3  companies).  However,  out  of  all  77 
respondents, the majority consult the HBERs and the Horizontal Guidelines at least once 
or  twice  a  year  while  many  of  them  indicated  that  they  consulted  the  texts  frequently 
(several times per year). 

Figure  3  –  How  often  respondents  consult  the  HBERs  and/or  the  Horizontal 
Guidelines 

86 

 
Source: Factual summary of the open public consultation, p. 5 (Figure 4). 

2.5.4.  Contributions to the open public consultation 

The  public  consultation  aimed  at  collecting  views  and  evidence  from  the  public  and 
stakeholders  on  the  following  five  evaluation  criteria:  effectiveness,  efficiency, 
relevance,  coherence  and  EU  added  value.  The  below  summary  of  the  contributions  to 
the public consultation is therefore structured around these five evaluation criteria. 

Effectiveness (Have the objectives been met?) 

In order to  evaluate whether the HBERs, together with the Horizontal Guidelines, have 
met their objectives, stakeholders were asked three sets of questions.  

The 1st set of questions inquired whether the respondents perceived the HBERs and the 
HGL  to  have  contributed  to  the  promotion  of  competition  in  the  EU:  27  respondents 
noted  an  overall  positive  effect  (35%)  and  33  perceived  this  contribution  to  be  only 
limited (43%). 3 respondents thought that the rules were neutral regarding competition in 
the  EU  (4%).  Companies  were  more  critical  about  the  HBERs  and  the  Horizontal 
Guidelines than other types of respondents. 68% considered that their positive effect was 
limited. 

87 

 
 
 
 
 
 
 
 
 
 
Figure 4 – Promotion of competition 

Respondents with a positive opinion supported their view by pointing out, for example, 
that the HBERs  and HGL  contribute to  an increased level  of legal  certainty. They also 
mentioned  that  the  rules  acknowledge  the  procompetitive  nature  of  many  horizontal 
cooperation agreements. Respondents also pointed to the contribution of the rules to the 
uniform application of Article 101 of the Treaty in all Member States.  

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.  Sustainability  agreements  were  mentioned  here  in  particular  as  an  area 
where  guidance  was  lacking.  Respondents  also  mentioned  that  some  details  should  be 
clarified or updated in order to provide more legal certainty. They also believed that in 
order  for  the  rules  to  be  relevant,  dynamics  of  the  digital  economy  would  need  to  be 
reflected  in  them.  Other  respondents  also  believed  that  the  rules  were  too  strict  or 
inflexible.  

The 2nd set of questions aimed at assessing the level  of legal certainty  provided by the 
current legal framework.  

In  this  set,  a  first  group  of  questions  aimed  at  identifying  whether  the  HBERs  and  the 
specific sections in the Horizontal Guidelines have provided sufficient legal certainty to 
conclude  different  types  of  horizontal  cooperation  agreements  without  the  risk  of 
infringing competition law.  

Respondents  did  not  consider  that  the  current  rules  (in  both  HBERs  and  Horizontal 
Guidelines  combined)  provide  sufficient  legal  certainty  for  any  type  of  horizontal 

88 

 
 
cooperation  agreements.  The  responses  are  most  balanced  (i.e.  the  number  of  ‘no’  and 
‘yes’  replies  are  nearly  equal)  for  production  (specialization)  agreements  and 
standardisation  agreements;  while  the  opinions  were  least  favourable  on  information 
exchange and for agreements not specifically addressed in the Horizontal Guidelines. 

Figure 5 – Legal certainty by type of horizontal cooperation agreement 

Source: Factual summary of the open public consultation, p. 7 (Figure 7). 

In their replies, respondents explained that while the current rules are useful as guidance, 
recent  market  developments  and  business  realities  have  diminished  the  legal  certainty 
provided.  They  argued  that  the  Commission  needed  to  update  and  clarify  the  rules  in 
relation  to  certain  aspects  in  order  to  provide  or  increase  legal  certainty.  Respondents 
pointed at developments in the case law of the European Court of Justice in this respect. 
Respondents also argued that the safe harbours provided by the rules would need to be 
expanded in order to allow for more instances of horizontal cooperation. Respondents felt 
that  the  amount  of  legal  certainty  provided  is  diminished  by  the  lack  of  market  share 
thresholds and other safe harbours outside the field of application of the two HBERs. The 
rules are also viewed by respondents as too complex and technical and therefore difficult 
to interpret, which again diminishes legal certainty. 

A  second  group  of  questions  aimed  at  gauging  whether  the  HBERs  in  themselves 
increased  legal  certainty,  in  comparison  to  a  situation  where  only  the  Horizontal 
Guidelines were available. Though nearly half of the respondents could not answer these 
questions,  among  those  who  answered,  for  both  block  exemption  regulations,  the  reply 
was a strong ‘yes’.  

89 

 
 
 
Figure 6 – HBERs’ capacity to increase legal certainty 

In their clarification, respondents argued in favour of ‘yes’ notably because the HBERs 
are  binding  on  Member  State  courts  and  competition  authorities  and  the  Horizontal 
Guidelines  are  not.  Other  respondents  replied  that  the  safe  harbours  provided  by  both 
HBERs  offer  more  legal  certainty  than  is  offered  by  self-assessment  under  Article  101 

90 

 
 
 
TFEU. Two respondents were of the opinion that the Specialisation BER did not increase 
legal  certainty  compared with  a situation where  only the Horizontal Guidelines applied 
but did not provide an explanation. 

Finally, a third group of questions concerned other types of cooperation agreements, in 
particular  (i)  whether  the  Horizontal  Guidelines  provided  sufficient  legal  certainty 
regarding horizontal cooperation agreements not specifically addressed in the guidelines 
(e.g.  sustainability  agreements)  and  (ii)  whether  these  other  types  of  horizontal 
cooperation agreements should have been specifically addressed in order to increase legal 
certainty.  

More  than  30  respondents  did  not  know  how  to  answer  these  questions,  but  38  of  the 
remaining respondents replied ‘no’ to the first question and 42 respondents replied with a 
‘yes’ to the second question. 

Figure 7 – Other types of horizontal cooperation agreements 

91 

 
 
Respondents considered that sustainability agreements deserved a specific section outside 
the examples  given in the standardisation chapter. Respondents also mentioned that the 
information  exchange  section  did  not  cover  sufficiently  new  developments  regarding 
benchmarking,  data  pooling  and  data  sharing  and  other  new  types  of  collaboration 
regarding artificial intelligence, ecosystems, network sharing and platforms. Respondents 
made  similar  comments  regarding  the  joint  purchasing  section  that  currently  does  not 
sufficiently cover new types of retail alliances or buyer arrangements. 

In  addition,  the  consultation  also  asked  stakeholders  whether  there  are  other  types  of 
horizontal  cooperation  agreements  outside  those  identified  in  the  HBERs  that  would 
satisfy the conditions of Article 101(3) of the Treaty. Horizontal cooperation agreements 
that  were  mentioned  are,  for  instance,  data  sharing  agreements,  collective  bargaining, 
sustainability  agreements,  joint  purchasing  agreements,  joint  bidding  agreements, 
co(re)insurance  agreements  within  the  meaning  of  the  former  Insurance  BER  and  joint 
commercialisation agreements.  

The 3rd set of questions focused on whether  the  two  HBERs  correctly  identify  those 
horizontal cooperation agreements that are compliant with Article 101 TFEU.  

Regarding the R&D BER, the consultation asked stakeholders for their opinion whether 
specific elements  of the  regulation  correctly identify horizontal cooperation agreements 
that do not violate Article 101 of the Treaty, namely the list of definitions, the conditions 
for  exemption,  the  market  share  thresholds  and  their  applications,  the  duration  of  the 
exemption, the list of hardcore restrictions and the list of excluded restrictions. 

92 

 
 
 
 
Figure 8 – R&D BER and compliance with Article 101 of the Treaty 

Source: Factual summary of the open public consultation, p. 10 (Figure 11). 

As  regards  the  list  of  definitions,  respondents  that  provided  explanations  to  their  reply 
commented on the fact that certain definitions require further clarification. Regarding the 
conditions for exemption, they mentioned that the current rules are difficult to apply and 
no longer match business realities. Regarding the market share thresholds for competing 
companies respondents mentioned that they were too low or that it was difficult to define 
markets  and  establish  the  market  shares  with  certainty.  Concerning  the  duration  of  the 
exemption,  7  respondents  mentioned  that  this  provision  would  require  clarification  or 
that  the  limited  duration  should  be  abolished  entirely.  Similarly,  7  respondents 
commented that there should be no list of hardcore restrictions or that some of the items 
on the list needed clarification or deletion. One respondent also mentioned that the list of 
excluded restrictions was unduly strict. 

Regarding the Specialisation BER, the consultation asked stakeholders for their opinion 
whether  specific  elements  of  the  regulation  correctly  identify  cooperation  agreements 
that do not violate Article 101 TFEU, namely the list of definitions, the explanations on 
the type of specialisation agreements to which the exemption applies,  the market  share 
threshold and its application and the list of hardcore restrictions. 

93 

 
 
 
 
 
 
 
Figure 9 – Specialisation BER and compliance with Article 101 of the Treaty 

Source: Factual summary of the open public consultation, p. 11 (Figure 12). 

Respondents commented on the complexity of applying the definitions to different types 
of  specialisation  agreements.  One  respondents  pointed  at  incoherence  between  the 
definitions and the explanations of the specialisation agreements. As regards the market 
share  threshold,  some  respondents  found  the  20%  barrier  too  low  and  considered  it 
inconsistent with the guidance provided in merger control. Regarding the list of hardcore 
restrictions, one respondent mentioned that the list should have been complemented with 
other excluded restrictions, as is the case for the R&D BER.  

At  the  end  of  the  section  on  effectiveness,  the  Commission  services  asked  respondents 
whether  the  HBERs  and  the  Horizontal  Guidelines  had  any  impacts  that  were  not 
expected or not intended. The majority of those who replied to this question believe that 
indeed  there  were  such  unintended  consequences.  Respondents  commented  that  the 
complexity of the current rules, notably as regards market definitions and calculation of 
market  shares,  has  hampered  the  conclusion  of  horizontal  cooperation  agreements. 
Respondents also mentioned that they have applied a restrictive approach to the rules to 
ensure maximum legal certainty, thereby foregoing opportunities that would require self-
assessment.  Respondents  also  mentioned  unintended  effects  as  regards  the  joint 
purchasing rules in Chapter 5 of the Horizontal Guidelines (2 respondents) and the rules 
on standardisation in Chapter 7 of the Horizontal Guidelines (8 respondents).  

Efficiency (Were the costs involved proportionate to the benefits?) 

In  order  to  evaluate  the  efficiency  of  the  HBERs,  together  with  the  Horizontal 
Guidelines,  the  Commission  services  asked  stakeholders  about  the  costs  and  benefits 
associated with these competition rules and whether the costs were proportionate with the 
benefits. 

94 

 
 
The  Commission  services  first  asked  stakeholders  about  the  different  types  of  costs 
associated  with  applying  the  HBERs  and  the  Horizontal  Guidelines.  Around  30 
respondents  were  not  able  or  willing  to  reply  to  the  question,  stated  that  they  did  not 
know the costs, the remaining contributors mentioned: (i) legal costs relating to internal 
and external legal advice, and costs of hiring economic consultants, (ii) opportunity cost 
(e.g.  abandon  or  delay  business  plans)  caused  by  the  legal  uncertainty  created  by  the 
rules or the excessive stringency of the rules, (iii) transaction and implementation costs 
incurred due to  ambiguities regarding, in  particular standardisation agreements and (iv) 
other costs such as extra training costs. Respondents also pointed out that SMEs tend to 
feel these costs the most. 

Respondents pointed out that it was very difficult to impossible to  estimate the costs of 
applying  the  HBERs  and  the  Horizontal  Guidelines.  One  respondent  tried  to  estimate 
them  as  the  minimal  legal  costs  to  respond  to  standard  essential  patent  (‘SEP’)  license 
demands  (€5  000-10  000);  another  respondent  as  the  conception  (€10  000),  set  up  and 
putting  into  place  costs  (€3  000)  of  compliance  guidelines  and  procedures.  One 
respondent  presented  a  non-exhaustive  list  of  monetary  elements,  including  legal  fees, 
salary of the parties’ staff involved in negotiations, additional capex and opex linked to 
the  need  to  prevent  hypothetical  antitrust  risk,  missed  business  opportunities,  slower 
entrance  of  an  important  competitor  and  loss  of  consumers’  welfare.  Respondents  also 
mentioned,  referring  to  SEPs  disputes,  that  the  costs  incurred  were  often  so  high  that 
SMEs  were  forced  to  accept  anticompetitive  settlement  terms  under  a  non-disclosure 
agreement, or abandon their business ventures altogether. 

The  Commission  services  also  asked  stakeholders  for  their  views  on  how  the  costs 
generated  by  the  application  of  the  HBERs  or  the  Horizontal  Guidelines  have  evolved 
compared  with  the  previous  legislative  framework  (the  2000  R&D  BER,  the  2000 
Specialisation  BER  and  the  2000  Horizontal  Guidelines).134 7  respondents  believed  that 
costs have increased and 3 were of the opinion that costs have decreased, while 67 could 
not reply to the question.  

Among  the  7  respondents  that  believed  that  costs  have  increased:  (i)  one  respondent 
pointed  out  that  previous  legislation  offered  clearer  requirements  specifically  for  the 
insurance  industry  (Insurance  BER  358/2003  and  Insurance  BER  267/2010), 135  (ii) 
another  respondent  referred  to  additional  training-related  expenses  in  relation  to 
standardisation agreements, (iii) two respondents pointed out the excessive complexity of 
the  rules  and  their  lack  of  flexibility  and  (iv)  two  other  respondents  mentioned  the 
increase of legal fees and the stricter enforcement policy. 

134   Commission Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) 
of the Treaty to categories of research and development agreements, OJ L 304, 5.12.2000, p. 7 (the 
‘2000  R&D  BER’);  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,  OJ  L  304, 
05.12.2000, p. 3 (‘the 2000 Specialisation BER’) and  Commission’s Guidelines on the applicability 
of Article 81 of the EC Treaty  to horizontal cooperation agreements, OJ C 3, 6.1.2001, p. 2 (‘2000 
Horizontal Guidelines’) 
135   See footnote 111 above. 

95 

 
                                                           
Those  3  respondents  that  believed  that  costs  have  decreased  stated  that:  (i)  the  current 
legislative framework is easier to apply and clearer than the previous one, and that (ii) the 
HBERs and the Horizontal Guidelines are more consistent amongst themselves and better 
drafted  than  their  predecessors,  and  that  (iii)  costs  were  further  reduced  due  to  R&D 
funding  agreements  now  being  covered  and  exclusive  licensing  to  one  of  the  parties 
being permitted. 

The Commission services also asked stakeholders what would have happened to the costs 
of  applying  the  rules  had  the  HBERs  not  been  in  place  but  only  the  HGL.  The 
respondents that replied agreed in their reply that costs would have increased, due to the 
loss of legal certainty and the loss of consistency the HBERs bring across the Union. 

When  asked  about  the  benefits  of  having  the  HBERs  and  the  Horizontal  Guidelines, 
respondents  mentioned,  for  example,  increased  legal  certainty,  decrease  in  legal  and 
compliance costs and saving management time. They also mentioned that the reduction 
of  costs  is  due  to  increased  uniformity  and  the  homogeneous  application  of  the 
exemption requirements of Article 101(3) of the Treaty throughout the Union.  

Finally, the consultation asked stakeholders to weigh the costs and benefits of applying 
the  competition  rules  on  horizontal  cooperation  agreements.  Most  of  those  respondents 
that could answer these questions were of the opinion that the costs are proportionate to 
the benefits, even if the HBERs and the Horizontal Guidelines could be further improved.  

Figure 10 – Costs v benefits of applying HBERs and the Horizontal Guidelines 

Source: Factual summary of the open public consultation, p. 15 (Figure 17). 

Relevance (Is EU action still necessary?) 

In order to evaluate whether the objectives of the HBERs, together with the Horizontal 
Guidelines, are still up to date in light of major trends and developments, the consultation 
asked stakeholders several questions.  

96 

 
 
First, the consultation asked stakeholders to specify any major trends or developments 
that affected the application of the HBERs and the Horizontal. 52 respondents referred to 
such developments in their reply that covered a wide range of topics.  

The most important development according to respondents (25 responses) is the  pursuit 
of sustainability goals.  

The second most important development for respondents was digitisation (18 responses). 
This covered a wide range of issues such as increasing reliance on digital technologies, 
the  impact  of  data  on  competition  in  both  innovative  and  traditional  markets,  data 
pooling, data sharing and algorithms.  Further issues that were mentioned in  this regard 
were  the  digitalisation  of  the  audiovisual  business,  more  complex  product  and  IT 
landscape, tendencies  to  more data  and platform driven business  models, emergence of 
two-sided  technology  platforms,  artificial  intelligence,  Internet  of  Things,  and  the 
emergence of FinTech and cryptocurrencies.  

Third,  another  important  development  was  globalisation  and  increased  international 
competition  (13  responses).  Respondents  also  specifically  mentioned  competition  with 
companies from other jurisdictions where competition rules are less strict and that often 
EU companies have difficulties to compete alone, therefore they need to cooperate.  

In  addition,  respondents  also  referred  to:  (i)  the  need  to  update  the  HBERs  and  the 
Horizontal  Guidelines  in  order  to  reflect  recent  developments  in  the  case  law  of  the 
European  Court  of  Justice,  for  example,  the  case  law  on  single  economic  entity  (9 
responses);  (ii) the changing standardisation landscape (8 responses) (e.g. the increased 
use of standard essential patents, the cross-sectorial and global nature of standardisation 
agreements,  and  that  technology  developments  have  caused  wireless  communication 
technologies  as  well  as  other  standardised  technologies  to  be  implemented  in  new 
industry sectors, resulting in a variety of new market players, in particular in the Internet 
of Things and related sectors); (iii) the emergence of purchasing alliances that are formed 
mainly by retailers; (iv) platforms that were mentioned in the context of digitalisation and 
regarding their increased importance in e-commerce and the gig economy.  

Other  issues  that  were  brought  up  by  some  respondents  were  (i)  the  increased 
enforcement  activity  by  competition  authorities  and  the  strengthening  of  private 
enforcement, which increases the need for more legal certainty; (ii) recent EU initiatives 
not  necessarily  reflected  in  competition  rules,  for  example  in  the  area  of  sustainability 
and  green  technologies;  (iii)  the  need  for  infrastructure  sharing  to  roll  out  new 
technologies; (iv) the dissolution of traditional competitive structures and the blurring of 
lines  between  horizontal  and  vertical  structures;  and  (v)  the  emergence  of  dual 
distribution, etc. 

However, despite the above major trends, most respondents considered that the rules are 
still relevant. While respondents believed that the objectives are still relevant, they were 
also of the view that the range of situations in which companies now cooperate requires 
an  update  to  the  rules,  for  example,  ensuring  that  the  rules  reflect  the  Commission's 
recent enforcement practice and that the examples are made more relevant to the modern 
digitalised economy. 

97 

 
Figure  11  –  Relevance  of  the  horizontal  cooperation  agreements  covered  by  the 
HBERs and the Horizontal Guidelines 

Source: Factual summary of the open public consultation, p. 15 (Figure 17). 

Coherence (Does the policy complement other actions or are there contradictions?) 

The  consultation  evaluated  whether  the  HBERs  and  the  Horizontal  Guidelines  were 
coherent with other legal instruments and policies. 

First,  the  Commission  services  focused  on  coherence  with  other  Commission’s 
instruments that provide guidance on the interpretation of Article 101 of the Treaty 
(e.g. other Block Exemption Regulations, the Vertical Guidelines and the Article 101(3) 
Guidelines). 43% of the respondents believed that the rules are coherent with other such 
instruments and 21% believed that they are not. 

Respondents that believed that different instruments interpreting Article 101 TFEU were 
incoherent mentioned:  

 

 

 

uncertainty on the applicability of Article 101 TFEU in certain situations (e.g. 
unclear if a parent that exercises decisive influence over a joint venture could 
coordinate its competitive conduct with the JV);  

coherence  with  the  Technology Transfer  Block Exemption  Regulation could 
be improved (e.g. discrepancies in the definitions of ‘technology markets’ and 
‘potential competitor’);  

rules on vertical agreements (i.e. VBER and Vertical Guidelines), in particular 
the blurring of the boundary between horizontal and vertical cooperation and 

98 

 
 
the  seemingly  different  treatment  of  certain  conducts,  such  as  information 
exchange and R&D cooperation, in a horizontal and vertical context;  

 

 

possible incoherence with the Horizontal Merger Guidelines (e.g. definition of 
‘potential competitor’), as well as  

partial incoherence with Regulation (EC) No 1184/2006 applying certain rules 
of competition to the production and trade in certain agricultural products.  

Second, the Commission services asked about coherence between competition rules on 
horizontal  agreements  and  existing/upcoming  legislation/policies  at  EU  or  national 
level. 27% of respondents believed that they are coherent, while 46% believed that there 
is a lack of coherence between these instruments and policies.  

Based  on  their  explicit  mentioning  the  policy  areas,  respondents  believed  that  the 
antitrust policy as laid down in the HBERs and Horizontal Guidelines is not sufficiently 
coherent with: 

 

 

 

 

 

the Commission’s climate policy (11 respondents); 

on-going  initiatives  in  the  field  of  digitalisation,  including  data  sharing  (7 
respondents); 

the EU’s industrial policy (5 respondents); 

the  Commission’s  ‘Communication  on  Setting  out  the  EU  approach  to 
Standard  Essential  Patents’ 136 (2  respondents)  as  well  as  the  uniformed 
application of competition law in SEP licensing related decisions by national 
courts (4 respondents); 

others,  such  as  the  broader  IP  regulation  and  external  actions  policy  (e.g. 
obligation  to  foster  the  sustainable  economic,  social  and  environmental 
development  of  developing  countries),  the  EU  Electronic  Communications 
Code  (‘EECC’),137 the  Directive  (EU)  2019/1023  on  preventive  restructuring 
frameworks  et.  al.138,  labour  law  (e.g.  the  right  to  collective  bargaining  for 
workers and self-employed). 

136   Commission’s  Communication,  Setting  out  the  EU  approach  to  Standard  Essential  Patents, 

COM(2017) 712 final. 

137   Directive  (EU)  2018/1972  of  the  European  Parliament  and  of  the  Council  of  11  December  2018 
establishing the European Electronic Communications Code (Recast), PE/52/2018/REV/1, OJ L 321, 
17.12.2018, p. 36. 

138   Directive  (EU)  2019/1023  of  the  European  Parliament  and  of  the  Council  of  20  June  2019  on 
preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to 
increase  the  efficiency  of  procedures  concerning  restructuring,  insolvency  and  discharge  of  debt, 
PE/93/2018/REV/1, OJ L 172, 26.6.2019, p. 18.  

99 

 
                                                           
EU Added Value (Did EU action provide clear added value?) 

The  consultation  finally  evaluated  whether  the  HBERs  and  the  Horizontal  Guidelines 
have  provided  a  clear  added  value  in  the  assessment  of  the  compatibility  of  horizontal 
cooperation  agreements  with  Article  101  of  the  Treaty.  Those  respondents  that  could 
answer this question gave an almost unanimous reply that they do. 

Figure 12 – Added value of the HBERs and the Horizontal Guidelines 

Source: Factual summary of the open public consultation, p. 15 (Figure 17). 

Respondents explained that the rules have contributed to the uniform application of rules 
across  the  EU.  Further,  respondents  pointed  out  that  the  HBERs  provide  a  uniform 
exemption  across  all  Member  States.  Nevertheless,  one  respondent  suggested  that  the 
Commission  and  the  NCAs  should  develop  a  consistent  approach  also  for  situations 
outside the HBERs. One respondent also noted that, as there is little case law available on 
the application of EU competition law on horizontal cooperation agreements, as well as 
little enforcement activity by the Commission and NCAs in this area, the HBERs and the 
Horizontal Guidelines provide a clear benefit. 

2.6.  SUMMARY OF THE TARGETED CONSULTATION OF NATIONAL COMPETITION 

AUTHORITIES  

A summary report of the consultation of national competition authorities was published 
in October 2020.139 

139   The  summary  of  the  contributions  of  NCAs  to  the  evaluation  of  the  HBERs  and  the  Horizontal 
website: 
the 

Guidelines 
available 
https://ec.europa.eu/competition/consultations/2019_hbers/NCA_summary.pdf 
contributions of NCAs’). 

(‘Summary  of 

Commission’s 

at 

is 

100 

 
 
                                                           
2.6.1.  Introduction 

In the context of the evaluation of the HBERs and the related Horizontal Guidelines, the 
Commission services asked the National Competition Authorities (‘NCAs’) to share their 
experience  in  applying  these  rules.  NCAs  are  bound  by  the  HBERs  when  assessing 
horizontal  cooperation  agreements.  In  contrast,  the  Horizontal  Guidelines  are  non-
binding for the NCAs, but nevertheless taken into account by all of them.  

2.6.2.  Overview of the respondents 

The NCAs were asked to fill in two different surveys: one about their opinion regarding 
the  three  instruments  and  another  one  on  each  of  their  cases  that  concerned  horizontal 
cooperation.  

The Commission services received 29 contributions (27 Member States, Norway and the 
United Kingdom) to the general survey. With regard to the case survey, the consultation 
asked  NCAs  to  exclude  cartel  cases.  As  a  result,  11  NCAs  reported  that  they  have  not 
had  any  cases  concerning  horizontal  cooperation  agreements.  The  remaining  18  NCAs 
had varying experience: some only had a handful of cases while one NCA had as many 
as 41 cases since 1 January 2011. 

2.6.3.  Overview of the submissions 

Overall, the NCAs consider that the Commission should maintain the three instruments, 
while using the review to clarify and adjust the current rules, notably in light  of market 
developments over the last decade. 

The purpose of this summary is to outline the main points raised by the NCAs without 
regard to the number of contributions addressing a particular point or whether a particular 
point of view is shared by all the NCAs. Therefore, in the following, reference is made 
generically to ‘NCAs’. However, for issues on which NCAs expressed diverging views, 
both sides of the argument are presented.140  

2.6.4.  Contributions to the consultation 

This  summary  provides  the  NCAs’  general  views  on  the  evaluation  of  the  HBERs  and 
the Horizontal Guidelines following the five evaluation criteria established by the Better 
Regulation  Requirements,141 i.e.  effectiveness,  efficiency,  relevance,  coherence  and  EU 
added  value,  including  the  comments  made  by  the  NCAs  as  regards  the  functioning  of 
some specific aspects of the HBERs and the Horizontal Guidelines. 

140   The  contributions  received  from  the  NCAs  cannot  be  regarded  as  the  official  position  of  the 

Commission and its services and thus do not bind the Commission. 

141   The  better  regulation  requirements  are  about  designing  and  evaluating  EU  policies  and  laws 
transparently on the basis of evidence and the views of stakeholders and citizens. They are applicable 
to  all  policy  areas  and  aim  for  targeted  and  proportionate  regulation  that  does  not  go  further  than 
required to achieve a given objective, while bringing benefits at minimum cost. 

101 

 
                                                           
Effectiveness (Have the objectives been met?) 

In order to  evaluate whether the HBERs, together with the Horizontal Guidelines, have 
met  their  objectives,  NCAs  were  asked  about  (i)  promotion  of  competition,  (ii)  legal 
certainty  and  (iii)  simplification  of  the  application  of  competition  rules  by  public 
authorities. 

Promotion of competition 

Out  of  the  29  NCAs  that  contributed  to  the  consultation,  22  NCAs  considered  that  the 
HBERs and the HGL have contributed to promoting competition in the EU and 3 NCAs 
indicated that they partly contributed. 4 NCAs replied that they did not know.  

The  NCAs  explained  that  the  Horizontal  Guidelines  (i)  contributed  to  promote 
companies’  compliance  with  the  competition  rules  when  entering  into  horizontal 
cooperation  agreements  (16  NCAs)  and  (ii)  helped  to  reduce  the  risk  for  divergent 
application of Article 101 of the Treaty in the individual Member States (4 NCAs). 

Other NCAs with a positive perception indicated that: 

 

 

 

the  general  analytical  framework  provided  by  the  Horizontal  Guidelines  is 
very  useful  when  evaluating  the  benefits  and  competitive  concerns  of 
horizontal  cooperation  agreements  and  other  arrangements.  Without  the 
Horizontal  Guidelines,  the  assessment  of  horizontal  cooperation  agreements 
would be much more burdensome;  

in  the  absence  of  the  HBERs  and  Horizontal  Guidelines,  companies  would 
have difficulty distinguishing horizontal cooperation agreements from cartels 
and  assessing  such  agreements  under  Article  101  TFEU.  This  would  make 
such  agreements  excessively  risky  and  unlikely  to  materialise  despite  the 
potential benefits for consumers that they may bring;  

the  Horizontal  Guidelines  might  contribute  to  promoting  competition  by 
clarifying that smaller merchants can, under certain circumstances, make use 
of  economies  of  scale  by  establishing  purchasing  associations,  which  may 
increase the merchants' readiness to  cooperate and build a counterbalance to 
the potential market power of bigger companies. 

However, among the NCAs with a less positive view, they explained that: 

 

 

the  Horizontal  Guidelines  offer  insufficient  legal  certainty  regarding  the 
assessment  as  ‘by  object’  or  ‘by  effect’  infringements  and  the  factors  that 
should be taken into account when analysing the legal and economic context 
of horizontal cooperation agreements. However, one NCA did not share this 
view regarding the chapter on information exchange;  

the HBERs  and Horizontal Guidelines (i) were  most  relevant  for purchasing 
and  commercialisation  agreements  and  in  the  telecommunications,  services 
and intellectual property rights sector; and that they (iii) are useful tools that 
have indeed contributed to promoting competition in the EU, yet their effect is 

102 

 
by  nature  relatively  limited  in  scope.  They  are  meant  to  complement  other 
available  tools  and  guidelines  that  pursue  the  same  high-level  objective  of 
fostering competition in the EU. 

Legal certainty 

Respectively  18  (for  the  Specialisation  BER)  and  19  (for  the  R&D  BER)  NCAs 
considered  that  the  HBERs  provided  sufficient  legal  certainty.  However,  one  NCA 
indicated that the respective articles on market share thresholds provide that the market 
share shall be calculated on the basis of value; and only if market sales value data are not 
available, estimates based on other reliable market  information  may be used. However, 
especially in digital markets sales value may not represent market share correctly despite 
its availability.  

Other  NCAs  mentioned  that  they  missed  guidance  in  the  HBERs  on  horizontal 
cooperation  agreements  concerning  (i)  sustainability  objectives  that  clearly  create 
benefits to the larger group of consumers and the society as a whole and do not restrict 
competition  more  than  necessary;  (ii)  public  health  issues;  and  (iii)  joint  purchasing  or 
selling agreements where the parties have a relatively small market share.  

Specifically, regarding R&D BER and Chapter 3 of the Horizontal Guidelines, 19 NCAs 
indicated  that  these  rules  provide  sufficient  legal  certainty  on  R&D  agreements  for 
companies.  The  same  number  of  NCAs  also  considered  that  the  R&D  BER  increases 
legal certainty compared with a situation where the R&D BER would not exist but only 
the  HGL  applied.  8  NCAs  did  not  have  experience  in  applying  the  R&D  BER  or  the 
HGL; however, one NCA added that guidance documents are always of value, even if an 
authority did not investigate any cases.  

Three NCAs indicated that the interpretation  of  the Horizontal Guidelines, for example 
due to its non-binding nature, might differ between Member States, but the provision of a 
safe harbour in the BER for agreements between companies below certain market share 
thresholds contributed to increased legal certainty.  

Some  NCAs  suggested  improvements  that  could  be  done  in  the  existing  rule  to  boost 
legal  certainty,  in  particular  that  HBERs  and  the  Horizontal  Guidelines  (i)  could  be 
improved in some areas, such as on ‘R&D poles’ or innovation spaces; that they (ii) do 
not  reflect  market  developments  and  case  law  on  horizontal  cooperation,  and  that  (iii) 
some of the drafting is not clear enough, in particular, regarding the hardcore restrictions 
(Article 5(b) R&D BER) and the definition of ´connected companies´ (Article 1(2) R&D 
BER).  In  addition,  (iv)  one  NCA  commented  that  market  definition  is  always  a  highly 
debated topic in  competition cases and  even more so in  R&D intensive  markets.  There 
may often be insufficient information as to the market share of (other) parties even if the 
market was defined before. 

Regarding  Specialisation  BER  and  Chapter  4  of  the  Horizontal  Guidelines,  18  NCAs 
considered that these rules provided sufficient legal certainty so companies can conclude 
production/specialisation agreements without the risk of infringing competition law; and 

103 

 
16 NCAs considered that the Specialisation BER increased legal certainty compared with 
a situation where only the Horizontal Guidelines would exist.  

However, NCAs mentioned several 
Specialisation BER and the Horizontal Guidelines that are described below.  

affecting 

issues 

the 

effectiveness  of 

the 

One  NCA  suggested  the  extension  of  the  definition  of  unilateral  specialisation  to 
agreements  between  more  than  two  parties  as  long  as  the  market  shares  are  below  the 
relevant thresholds.  

Other NCAs commented on the lack of clarity regarding: (i) the definitions, the scope of 
application and the assessment of agreements covered by the Specialisation BER; (ii) the 
material  demands  for  exemption;  (iii)  whether  the  specialisation  may  take  place  on  the 
production level, and not only specialisation on e.g. the customer level; (iii) the definition 
of  ‘product’  with  the  exemption  of  distribution  services  (Article  1(1)(f)  Specialisation 
BER);  (iv) the definition of price  fixing in  Article 4 of the Specialisation BER  and (v) 
whether the definitions in the Specialisation BER would cover joint bidding in a public 
procurement context.  

Two  NCAs  mentioned  that  guidance  is  missing  in  relation  to  (i)  joint  production  and 
joint  distribution;  (ii)  the  distinction  of  specialisation  agreements  from  vertical 
agreements, and (iii) the relationship to other regulations like the TTBER or the VBER.  

Regarding Chapters 2, 5, 6 and 7 of the Horizontal Guidelines, 20 NCAs considered that 
they  provided  sufficient  legal  certainty  on  horizontal  cooperation  agreements  regarding 
information  exchange, joint purchasing, commercialisation and standardisation;  while 6 
NCAs disagreed and 3 did not know.  

Several  NCAs  pointed  at  guidance  lacking,  notably  regarding  information  exchange 
(Chapter 2) and joint purchasing agreements (Chapter 5). In particular,  

 

 

concerning  information  exchange,  one  NCA  found  it  particularly  helpful  in 
explaining  and  exemplifying  the  circumstances  in  which  the  exchange  of 
information  is  likely  to  restrict  competition  and  those  in  which  it  may  have 
pro-competitive  effects.  While  3  NCAs  remarked  that  the  chapter  could  be 
improved  by  clarifying  a  number  of  concepts,  namely  data  sharing  and  data 
pooling,  illegal  signalling,  the  use  of  benchmarks  by  trade  associations,  hub 
and spoke arrangements and genuine public information; 

that 

indicated 

joint  purchasing  agreements,  one  NCA 

regarding 
the 
Horizontal Guidelines had been of high relevance for its enforcement practice. 
Nevertheless, some paragraphs in the section were considered too abstract and 
unclear  in  part.  Furthermore,  some  NCAs  pointed  out  that  (i)  guidance  was 
lacking  on  the  notions  of  market  concentration,  purchasing  power  and  joint 
bidding,  and  that  (ii)  clarifications  are  needed  on  (1)  how  to  distinguish 
between collective boycott and joint purchasing, (2) how to address purchase 
agreements between competitors when these have not resulted in a reduction 
of  the  final  consumer  price,  (3)  how  to  distinguish  between  legitimate  joint 

104 

 
purchasing agreements and buyer cartels, and (4) how user groups on digital 
platforms may collectively bargain.  

Finally,  some  NCAs  mentioned  with  regard  to  the  Horizontal  Guidelines  that  (i)  the 
provisions  on  environmental  agreements  had  been  removed  from  the  2010  Horizontal 
Guidelines;  that (ii) the guidelines should take into account  the enforcement challenges 
posed by digital markets (e.g. market definition); that (iii) the guidelines should refer to 
the  most  recent  cases  and  case  law  concerning  horizontal  cooperation  agreements;  that 
(iv) they could provide guidance on the existing market shares thresholds when assessing 
market power, and that (v) the guidelines lacked guidance on issues of cooperation in the 
labour market, including on no poaching and wage fixing agreements.  

Regarding  other  types  of  horizontal  cooperation  agreements  that  are  currently  not 
specifically  addressed  in  separate  sections  of  the  Horizontal  Guidelines,  6  NCAs 
considered  that  the  Horizontal  Guidelines  provided  sufficient  legal  certainty,  12  NCAs 
disagreed and 11 did not know.  

More concretely, several NCAS stressed the need for more guidance on: (i) agreements 
pursuing sustainability goals as they felt such guidance in the standardisation chapter is 
lacking  (11  NCAs);  (ii)  joint  bidding,  suggesting  introducing  a  separate  chapter  in  the 
Horizontal  Guidelines  (6  NCAs)  and  on  (iii)  different  types  of  agreements  relating  to 
digital  platforms. These  and other types of agreements mentioned by  at  least  one NCA 
are included in Figure 13. 

Figure  13 –  Horizontal agreements not addressed in a specific section in the HGL 
for which guidance is lacking according to NCAs 

Source: Summary of the contributions of NCAs, p. 8 (Figure 5) 

105 

 
 
 
 
Simplification of the application of competition rules by public authorities  

Part  of  the  questionnaire  was  dedicated  to  questions  relating  to  the  application  of 
competition rules by the NCAs themselves, namely whether the HBERs and Horizontal 
Guidelines simplify the application of competition rules.  

The majority of the NCAs indicated that they did not know the reply to these questions, 
mostly  because  they  did  not  have  (extensive)  experience  in  investigating  R&D  and 
specialisation agreements. However, the majority of the NCAs (25 out  of 29) indicated 
that the Horizontal Guidelines simplify the application of competition rules compared to 
a situation with no HBERs or Horizontal Guidelines.  

Among  the  NCAs  with  a  positive  view,  some  NCAs  mentioned  that  the  Horizontal 
Guidelines provide comprehensive guidance to both companies and authorities on how to 
assess the compatibility of different cooperation agreements. They also remarked that the 
national courts take the Horizontal Guidelines into consideration in their cases. 

Efficiency (Were the costs involved proportionate to the benefits?) 

In  order  to  evaluate  the  efficiency  of  the  HBERs,  together  with  the  Horizontal 
Guidelines, the Commission services asked NCAs about the costs and benefits associated 
with these competition rules and whether the costs were proportionate with the benefits. 

The majority of the NCAs were not able to provide replies to the questions in this section 
of the consultation or to provide an estimation of the costs.  

Regarding  costs  for  companies,  the  NCAs  that  provided  a  response  indicated  that  the 
HBERs and the Horizontal Guidelines led to a reduction of costs for companies, mainly 
due  to  reduced  legal  costs  stemming  from  the  ‘safe  harbours’  and  simplification  of  the 
rules (6 NCAs).  

Moreover, according to 11 NCAs, the cost for companies would increase if there would 
be  no  HBERs.  The  increase  in  compliance  costs  would  stem  from  the  need  to  hire 
consultants/legal advisers and the loss of safe harbours. In addition, one NCA considered 
that  safe  harbours  and  hard-core  restrictions  could  eventually  be  introduced  in  the 
Horizontal  Guidelines  and  another  NCA  referred  to  the  absence  of  harmonisation 
requiring companies to follow diverse national regulations.  

Regarding  the  costs  for  the  NCAs,  6  NCAs  indicated  that  the  costs  generated  by  the 
application of the HBERs or the Horizontal Guidelines had decreased compared with the 
previous  legislative  framework.  In  general,  the  NCAs  indicated  that  the  current 
framework  provides  more  legal  clarity  and  reflects  better  the  modern  business  models 
compared to the previous regime.  

Moreover,  respectively  11  (for  the  R&D  BER)  and  12  (for  the  Specialisation  BER) 
NCAs indicated that the costs of the authorities for ensuring compliance would increase 
without the HBERs in place. Costs would increase because of the lack of thresholds, the 
need to have national regulations or more guidance or intervention from the NCAs that 
would be more difficult to provide. Nevertheless, one NCA felt that costs would decrease 

106 

 
given  that  companies  were  less  likely  to  engage  in  harmful  R&D  cooperation  with 
competitors in the absence of the R&D BER.  

NCAs considered that legal certainty was the main benefit in having the HBERs and the 
Horizontal  Guidelines  (11  NCAs).  These  NCAs  mentioned  that  (i)  the  procedure  goes 
faster  because  of  the  Horizontal  Guidelines,  (ii)  the  benefit  of  legal  conformity  in  all 
Member  States,  (iii)  the  reduction  of  costs  and  that  (iv)  the  national  court  takes  the 
Horizontal  Guidelines  into  account  when  assessing  whether  the  NCA  has  met  the 
required legal standards in its decisions.  

In  addition,  one  NCA  mentioned  that  the  Horizontal  Guidelines  provide  an  analytical 
framework for screening possible future cases and one NCA indicated that, considering 
that the Specialisation BER allows some price fixing, the market share threshold might 
be too high if definitions are being interpreted broadly. 

Several  NCAs  considered  that  costs  of  applying  the  HBERs  (9  NCAs  for  the 
Specialisation BER and 10 NCAs for the R&D BER) and the Horizontal Guidelines (17 
NCAs) are proportionate to the benefits. In fact, some NCAs specified that they see no 
costs with the BERs, only benefits. 

Relevance (Is EU action still necessary?) 

In  order  to  assess  the  relevance  of  the  HBERs  and  the  Horizontal  Guidelines,  the 
Commission services asked the NCAs whether the objectives of the texts are still up-to-
date  considering  the  developments  that  have  taken  place  since  their  publication.  The 
majority of the NCAs (15 NCAs for the R&D BER and 16 NCAs for the Specialisation 
BER,  a  range  between  19  and  22  for  the  Horizontal  Guidelines)  considered  that  the 
HBERs and the Horizontal Guidelines are still relevant, even though the NCAs provided 
many suggestions for major trends that have affected the application of these rules and 
that the NCAs felt are insufficiently dealt with in the current texts.  

107 

 
 
 
 
 
 
 
 
 
 
 
Figure  14  –  Major  trends  according  to  NCAs  that  affect  the  application  of  the 
HBERs and the Horizontal Guidelines 

Source: Summary of the contributions of NCAs, p. 11 (Figure 6) 

Several  NCAs  indicated  that  despite  the  relevance  of  the  HBERs  and  the  Horizontal 
Guidelines,  there  was  some  room  for  improvement.  In  particular,  some  NCAs 
commented that (i) the texts might not be suitable for the digital/internet economy, where 
different efficiencies and market dynamics might apply, (ii) additional guidance may be 
required on information exchange in distribution agreements when the supplier is also a 
direct  competitor  of  the  distributor;  as  well  as  (iii)  further  guidance  on  a  fair  licensing 
system for standards, updated to reflect case law developments and the increasing use of 
SEP-protected  technologies.  In  particular,  according  to  the  ‘Communication  on  setting 
out  the EU approach to  standard essential patents’ the creation of patent  pools or other 
licensing platforms, within the scope of EU competition law, should be encouraged.  

Finally,  one  NCA  added  that  the  evaluation  and  potential  revision  of  the  current  rules 
needs to be business-model neutral in order not to distort the level market-created playing 
field. 

Coherence (Does the policy complement other actions or are there contradictions?) 

The  consultation  evaluated  whether  the  HBERs  and  the  Horizontal  Guidelines  were 
coherent with other legal instruments and policies. 

The majority of the NCAs considered that the HBERs and the Horizontal Guidelines are 
coherent  with  other  instruments  and/or  case  law  that  provide  guidance  on  the 
interpretation  of  Article  101  of  the  Treaty  (e.g.  other  block  exemption  regulations,  the 
Commission  Guidelines  on  Vertical  Restraints  and  the  Commission  Guidelines  on  the 

108 

 
 
application  of  Article  101(3)  TFEU)  (25  NCAs),  and  that  they  are  also  coherent  with 
other existing or upcoming legislation or policies at EU or national level (17 NCAs). 

However, several NCAs mentioned that the Horizontal Guidelines: (i) are missing clarity 
on some horizontal elements of vertical agreements; that (ii) some of their provisions and 
concepts  seemed  at  odds  with  similar  provisions  in  the  VBER  and  the  Vertical 
Guidelines (in particular, one NCA mentioned the need to harmonise the rules on ‘dual 
distribution’). The Horizontal Guidelines also (iii) do not seem to distinguish consistently 
between  horizontal  cooperation  agreements  and  cartels  as  is  done  in  the  Guidelines  on 
the  Effect  on  Trade;  and  there  is  a  (iv)  need  to  update  the  concept  of  restrictions  by 
object.  In  addition,  the  Horizontal  Guidelines  (v)  require  to  include  recent  case  law  on 
the  requirement  of  SEP  holders  to  respect  FRAND  terms  or  the  general  principles 
relating  to  FRAND  licensing  in  accordance  with  the  2017  ‘Communication  on  Setting 
out the EU approach to Standard Essential Patents’.  

Finally,  2  NCAs  noted  that  that  the  assessment  of  horizontal  cooperation  agreements 
promoting sustainability goals should be taken into account better. 

Added Value (Did EU action provide clear added value?) 

NCAs  generally  consider  that  the  HBERs  and  the  Horizontal  Guidelines  have  added 
value  in  the  assessment  of  the  compatibility  of  horizontal  cooperation  agreements  with 
Article 101 of the Treaty (between 15-21 NCAs, depending on whether it concerned one 
of the BERs or the Horizontal Guidelines). They consider that a lapse of the HBERs and 
the Horizontal Guidelines would seriously undermine harmonisation in the enforcement 
of Article 101 of the Treaty across the EU. 

Specifically,  the  NCAs  refer  to  (i)  the  useful  legal  criteria,  (ii)  the  coherency  amongst 
Member States, (iii) the  instruments  being  more  specific than other more  general  ones, 
(iv) the simple self-assessment tools, (v) the legal certainty, (vi) the reduced complexity 
and legal costs for the parties, (vii) the increased competition law compliance; (viii) and 
the increased number of pro-competitive R&D agreements concluded – to the benefit of 
consumers.  

Several NCAs (9) reported that national guidelines on horizontal cooperation were issued 
and one NCA explained that such national guidelines are currently considered. 

The national guidelines that were mentioned cover issues such as joint bidding, collective 
bargaining  for  self-employed  workers,  small  and  medium  sized  enterprises  and 
information exchange. As reasons for adopting national guidelines, the NCAs mentioned 
requests from specific stakeholder groups (trade associations, SMEs) to assist them with 
their  self-assessment.  NCAs  also  adopted  guidelines  to  act  as  complement  to  the 
Horizontal  Guidelines  where  it  was  felt  that  the  national  situation  required  additional 
guidance.  

In addition, two NCAs reported that they issued specific guidance on cooperation in light 
of the COVID-19 crisis and one authority is envisaging adopting national guidance only 
if the future Horizontal Guidelines would not cover certain topics.  

109 

 
2.7.  OTHER CONSULTATION ACTIVITIES 

In  addition  to  the  above-mentioned  consultations,  the  Commission  services  received  a 
number of spontaneous submissions from stakeholders throughout the evaluation. Some 
of these contributions were submitted by stakeholders that had participated in the public 
consultation  and  were  therefore  intended  to  supplement  their  views  with  additional 
evidence.  Other  submissions  were  received  from  business  associations  that  had  not 
participated  in  the  public  consultation.  These  submissions  largely  echoed  the  issues 
already  raised  in  the  different  consultation  activities.  All  such  submissions  were 
published  on  the  dedicated  HBERs  review  webpage  on  DG  Competition’s  website,142 
except for a few submissions which stakeholders had asked the Commission services not 
to  publish  for  confidentiality  reasons.  The  Commission  services  used  the  latter  to 
enhance  its  understanding  of  particular  stakeholders’  positions  but  did  not  rely  on  the 
information  contained  therein  for  any  of  the  conclusions  in  the  Staff  Working 
Document.  

Throughout  the  evaluation,  the  Commission  services  also  met  bilaterally  with 
stakeholders  that  requested  this.  These  meetings  aimed  at  discussing  the  submissions 
made by stakeholders, either in the context of the public consultation or outside of it, or 
the process of the evaluation. 

142   Review  of  the  two  Horizontal  Block  Exemption  Regulations,  Results  of  the  public  consultation, 
website: 

available 
https://ec.europa.eu/competition/consultations/2019_hbers/index_en.html.  

Commission’s 

at 

110 

 
 
                                                           
ANNEX 3: METHODS AND ANALYTICAL MODELS 

Evaluation criteria and questions 

Indicators 

Sources 

Effectiveness 

1.  Do you perceive that the HBERs and the Horizontal Guidelines 

have contributed to promoting competition in the EU? 

2.  Have the HBERs and the Horizontal Guidelines provided sufficient 

legal certainty that companies can conclude horizontal 
cooperation agreements without the risk of infringing competition 
law? 

3.  Do the HBERs simplify the application of competition rules for the 
National Competition Authorities compared with a situation where 
the HBERs would not exist but only the Horizontal Guidelines 
applied? 

Efficiency 

4.  What are the costs associated with the application of the HBERs 

and the Horizontal Guidelines? 

  HBERs and Horizontal Guidelines ensure an effective protection 

of competition. 

  HBERs and Horizontal Guidelines provide adequate legal certainty 

to stakeholders, making it easier to self-assess horizontal 
cooperation agreements. 

  Specific provisions of HBERs and Horizontal Guidelines for 

which there is uncertainty. 

  HBERs and Horizontal Guidelines provide legal certainty to other 

types of horizontal cooperation agreements outside those 
specifically identified in these rules. 

  Effects of the Horizontal Guidelines in the absence of the HBERs. 

  HBERs and Horizontal Guidelines simplify administrative 
supervision by providing a framework for the competition 
authorities and the national courts. 

  Open public 

consultation, section on 
effectiveness. 

  External support study: 

responses to the 
evaluation questions for 
Tasks 1, 2, 4 and 5. 

  Targeted consultation of 

NCAs. 

  Enforcement practice of 
the Commission and 
NCAs. 

5.  Do the costs of ensuring compliance of horizontal cooperation 

  Costs of self-assessment of horizontal cooperation agreements. 

agreements with Article 101 of the Treaty would be different if the 
current HBERs were not in place but only the Horizontal 
Guidelines applied? 

6.  Have the costs generated by the application of the HBERs, 

together with the Horizontal Guidelines, evolved compared to the 
2000 HBERs and the 2000 Horizontal Guidelines? 

  Difference of costs of compliance under HBERs versus projected 

costs of compliance under Horizontal Guidelines only. 

  Difference of costs of compliance under HBERs and Horizontal 

Guidelines versus costs of compliance under Commission 
Regulations (EC) No 2659 and 2658/2000. 

  Benefits of the HBERs and Horizontal Guidelines. 

7.  Does the application of the HBERs and the Horizontal Guidelines 

generate costs that are proportionate to the benefits they bring? 

111 

  Open public 

consultation, section on 
efficiency. 

  External support study: 

responses to the 
evaluation questions for 
Tasks 1, 3 and 4. 

  Targeted consultation of 

NCAs. 

 
  
  
  
  
Evaluation criteria and questions 

Indicators 

Sources 

Relevance 

8.  Are the objectives of the HBERs and the Horizontal Guidelines 

and NCAs' responses. 

still up-to-date considering the developments that have taken place 
since their publication?  

  Whether the objectives of the HBERs and the Horizontal 

Guidelines still meet the needs and problems of the stakeholders, 
considering major trends and market developments. 

  Major trends and market developments identified in stakeholders' 

Coherence 

9.  Are the HBERs, together with the Horizontal Guidelines, coherent 

with other Commission instruments that provide guidance on the 
interpretation of Article 101 of the Treaty and with other EU 
legislation with relevance for horizontal cooperation agreements?  

EU added value 

10.  Do the HBERs, together with the Horizontal Guidelines, as an 
intervention at EU level, add value in the assessment of the 
compatibility of horizontal cooperation agreements with Article 
101 of the Treaty? 

  Identification of relevant legislation and assessment of level of 

coherence of HBERs and Horizontal Guidelines with it. 

  Benefits for stakeholders of the presence of HBERs and Horizontal 

Guidelines compared to absence of them. 

  Open public 

consultation, section on 
relevance. 

  External support study: 

responses to the 
evaluation questions for 
Tasks 1, 2, 4 and 5. 

  Targeted consultation of 

NCAs. 

  Enforcement practice of 
the Commission and 
NCAs. 

  Open public 

consultation, section on 
coherence. 

  Targeted consultation of 

NCAs. 

  Open public 

consultation, section on 
EU added value. 

  Targeted consultation of 

NCAs. 

112 

 
  
  
  
  
  
  
 
ANNEX 4: OVERVIEW OF ISSUES IDENTIFIED DURING THE EVALUATION PROCESS 

4.1.  OVERVIEW OF ISSUES IDENTIFIED DURING THE EVALUATION PROCESS 

This section sets out the areas for which stakeholders consider that the HBERs, together 
with  the  Horizontal  Guidelines,  are  not  functioning  well  or  not  functioning  as  well  as 
they could, including the underlying reasons. 

4.1.1.  General issues 

In  general,  respondents  consider  that  many  of  the  terms  and  definitions  used  in  the 
HBERs  and  Horizontal  Guidelines  lack  clarity.  They  have  pointed  at  different 
provisions in the HBERs and paragraphs in the Horizontal Guidelines that contain terms 
for  which  they  consider  the  explanation  is  ambiguous  or  otherwise  unclear.  Some 
respondents require additional guidance on the application of certain concepts such as the 
‘commonality of costs’. 

Some  respondents  point  out  that  the  HBERs  and  the  Horizontal  Guidelines  are 
insufficiently  aligned  with  other  Commission  legislation,  such  as  the  VBER,  the 
TTBER  and  the  EUMR.  They  pointed  at  discrepancies  in  the  definitions  of  several 
concepts used in the intervention and in these other texts (e.g. non-full functionality joint 
ventures, potential competitors, etc.). 

In connection with this, several respondents consider that the HBERs and the Horizontal 
Guidelines  do  not  provide  sufficient  legal  certainty  regarding  their  application  to  joint 
ventures and connected companies. They feel that the current rules do not reflect recent 
case  law  of  the  Court  of  Justice  of  the  European  Union  on  the  single  economic  entity 
doctrine.  Other  respondents  consider  that  the  guidance  provided  differs  from  the  rules 
applied in merger control. 

Some respondents  also  consider that the HBERs  and Horizontal Guidelines lack clarity 
on  the  assessment  of  the  centre  of  gravity  of  horizontal  cooperation  agreements.  This 
applies notably in cases where the cooperation involves a combination of different types 
of horizontal cooperation agreements. 

A related issue raised by respondents in connection with different horizontal cooperation 
agreements  covered  by  the  HBERs  and  the  Horizontal  Guidelines  is  that  these 
agreements  nowadays  often  include  some  vertical  elements.  Guidance  that  is  solely 
aimed at the horizontal relationship between competitors may therefore be insufficient to 
self-assess  all  aspects  of  an  agreement  that  can  also  encompass  relations  between  non-
competitors. 

113 

 
 
 
 
 
A  number  of  respondents  indicate  that  the  focus  in  the  HBERs  and  the  Horizontal 
Guidelines is too much on the by object nature of restrictions of competition linked to 
horizontal  cooperation  agreements.  They  mention  that  this  leads  to  an  overly  cautious 
approach in the self-assessment, as companies fear high fines. Respondents also consider 
that  the  HBERs  and  the  Horizontal  Guidelines  lack  guidance  concerning  the  elements 
required to fulfil the conditions  of  Article  101(3) of the Treaty, notably as regards the 
efficiencies  required,  and  regarding  the  definition  and  identification  of  potential 
competitors, notably in innovation and digital markets.  

Several  respondents  have  reported  difficulties  defining  the  relevant  market(s) 
concerned  by  their  horizontal  cooperation  agreement,  as  well  as  difficulties  assessing 
and calculating their market shares and those of other players. This problem is raised 
for  different  chapters  of  the  Horizontal  Guidelines  and  for  the  HBERs.  Respondents 
consider  that  these  problems  are  increased  as  a  consequence  of  digitisation.  Some 
respondents  consider  that  small  and  medium  sized  enterprises  especially  encounter 
difficulties  with  market  definitions  and  calculation  of  market  shares  due  to  the 
administrative burden they bring and the lack of technical skills to assess these elements.  

Some  respondents  pointed  out  that  guidelines  by  nature  offer  less  legal  certainty  than 
block  exemption  regulations.  They  argue  that  certain  types  of  horizontal  cooperation 
agreements  pursue  efficiencies  similar  to  R&D  and  specialisation  agreements  and 
therefore argue in favour of more block exemption regulations or a block exemption 
regulation with a wider scope, but they do not identify any specific type of agreements 
for  which  this  should  be  done.  Other  respondents  consider  that  there  is  a  lack  of  safe 
harbours in the form of market share thresholds in the Horizontal Guidelines or that the 
existing thresholds should be increased.  

Respondents  consider  in  general  that  the  guidance  in  the  HBERs  and  the  Horizontal 
Guidelines is not sufficiently adapted to recent developments. They mention notably the 
pursuit of sustainability goal as well as digitisation and its accompanying development of 
new technologies, business models and sectors.  

Respondents also consider that the HBERs and Horizontal Guidelines are not adapted to 
the  recent  case  law  of  the  Court  of  Justice  of  the  European  Union.  They  point  at 
several judgments and opinions of Advocates General that should be incorporated in the 
guidance provided. In addition, some respondents consider that the Commission should 
follow  the  decision  practice  of  specific  NCAs  on  topics  such  as  information  exchange, 
even  if  that  decision  practice  is  not  binding  vis-à-vis  the  Commission  or  the  Court  of 
Justice of the European Union. 

A  number  of  respondents  consider  that  the  level  of  guidance  that  can  be  provided  by 
instruments such as the HBERs and the Horizontal Guidelines in general is insufficient. 
They would prefer a possibility of voluntary ex-ante consultations with the Commission 
or a voluntary fast-track notification procedure. 

114 

 
 
 
Similarly, respondents consider that the examples provided in the Horizontal Guidelines 
are outdated, too limited or not representative for actual cooperation projects.  

There  are  several  additional  types  of  horizontal  cooperation  agreements  for  which 
individual  stakeholders  feel  that  guidance  is  currently  lacking.  The  agreements  most 
often  mentioned  concern  sustainability  goals.  However,  respondents  also  mention  that 
the  Horizontal  Guidelines  lack  specific  guidance  among  others  for  joint  bidding 
agreements,  joint  production  and  distribution  agreements,  new  forms  of  cooperation  in 
the  telecom/digital  sector,  infrastructure  sharing,  data  pooling/sharing/data  access 
agreements  cooperation  between  small-  and  medium-sized  enterprises  and  collective 
bargaining.  Some  respondents  also  mentioned  that  guidance  is  lacking  on  industrial 
alliances  or  industry  wide  cooperation  agreements  which  combine  different  types  of 
horizontal cooperation. Other respondents consider that there is insufficient guidance to 
assist  the  self-assessment  of  cooperation  between  competitors  with  the  aim  of 
restructuring companies at risk of insolvency.  

In  addition,  respondents  suggested 
the 
Commission  to  provide  direct  guidance  (e.g.  a  voluntary  fast-track  notification 
procedure) could be useful.  

that  procedural  modifications 

to  allow 

Finally,  some  respondents  consider  that  the  HBERs  and  Horizontal  Guidelines  are 
insufficiently  aligned  with  other  EU  policies  (besides  sustainability  and  digitisation). 
They  mention  in  particular  trade  and  industrial  policy,  pharmaceutical  policy,  IP 
regulation,  connectivity,  environmental  protection,  IPCEI,143 EU  Data  Space  and  social 
equity. 

4.1.2.  R&D agreements (R&D BER and Chapter 3 of the Horizontal 

Guidelines) 

Respondents consider that the R&D BER is too complex and leads to an overly cautious 
interpretation  of  the  applicable  rules.  Some  respondents  to  the  public  consultation 
indicated that a simplification of these rules could be achieved, for example, by adopting 
a general horizontal BER.  

Moreover,  respondents  requested  the  clarification  of  several  notions  addressed  in  the 
R&D  BER  and  in  Chapter  3  of  the  Horizontal  Guidelines,  including  the  boundaries 
between joint R&D, paid-for R&D and agreements falling outside R&D, and the notions 
of  ‘joint  exploitation’,  ‘field  of  use’  restrictions,  ‘compensation’,  ‘competition  in 
innovation’, ‘R&D poles’ or ‘decisiveness’. Furthermore, the concept of ‘not competing 
undertaking’ seems to also raise issues. 

143   IPCEI stands for Important Project of Common European interest. 

115 

 
 
 
                                                           
Some respondents consider that the HBERs and the Horizontal Guidelines do not provide 
sufficient  guidance  on  the  early  stages  of  R&D.  They  consider  that  the  scope  of  the 
R&D BER should be extended to cover early stages of R&D (including basic research) 
where  any  prospect  of  commercialisation  is  years  away  and  no  determination  of  R&D 
poles is possible. 

Moreover,  several  respondents  consider  that  paid-for  R&D  cooperation  should  be 
removed  from  the  R&D  BER  and  assessed  under  the  Subcontracting  Notice 144 or  the 
TTBER. Other respondents consider that, alternatively, the requirement for full access to 
the final results of paid-for R&D cooperation should be removed.  

With  regard  to  the  conditions  for  exemption  described  under  Article  3  of  the  R&D 
BER,  several  respondents  pointed  to  their  lack  of  clarity,  complexity  and  counter-
intuitive description, as a result their interpretation requires the assistance of competition 
law  experts.  Respondents  indicated  that  several  aspects  were  considered  problematic 
and/or unclear, in particular the requirements to provide ‘full access’ to R&D results and 
access  to  ‘pre-existing know-how’. Some of the  exceptions  foreseen to  the principle of 
full access  were also  considered insufficient,  namely the exception concerning research 
institutes and academic bodies that seems to base the exception on the alleged incorrect 
assumption  that  they  are  normally  not  active  in  the  exploitation  of  results.  In  addition, 
respondents also pointed that the notion of ‘compensation’ exchange between the parties 
of  the  horizontal  cooperation  agreements  require  more  guidance,  in  particular,  on 
objective methods to safely calculate it. 

Several  respondents  consider  that  the  market  share  threshold  of  25%  is  too  low  to 
exempt pro-competitive R&D agreements  and should  be increased. Alternatively, some 
respondents consider that the market share threshold should be aligned with the market 
share threshold in the EUMR and TTBER. Some respondents also consider that a safety 
margin  should  be  introduced  in  case  an  agreement  surpasses  the  threshold.  Moreover, 
respondents  indicated  that  further  guidance  was  necessary  on  how  to  calculate  market 
shares  in  technology  and  innovation  markets,  including  the  possibility  of  looking  at  a 
period longer than a year for the calculation of market shares. 

With  regard  to  non-competing  undertakings,  some  respondents  point  out  that  the  R&D 
BER  should  state  more  clearly  the  absence  of  a  market  share  threshold.  Moreover, 
respondents consider that the duration of the exemption for non-competing companies 
(7 years) under Article 4(1) of the R&D BER is too short for sectors in which R&D costs 
are  very  high  and  cannot  be  recovered  within  the  7-year  time  frame.  Respondents  also 

144  Commission  notice  of  18  December  1978  concerning  its  assessment  of  certain  subcontracting 

agreements in relation to Article 85 (1) of the EEC Treaty, OJ C 1, 3.1.1979, p. 2. 

116 

 
 
 
                                                           
considered that the provision  is  unclear with  regard to the point in  time in  which the 7 
year period starts.  

Finally,  as  indicated  in  the  section  on  General  Issues  (Annex  4,  section  4.1.1  above), 
respondents  also  raise  all  or  some  of  these  issues  in  connexion  with  horizontal  R&D 
agreements. 

4.1.3.  Specialisation agreements (Specialisation BER and Chapter 4 of the 

Horizontal Guidelines) 

Several  concepts  included  in  the  Specialisation  BER  and/or  in  Chapter  4  of  the 
Horizontal  Guidelines  raise  issues  for  several  respondents  due  to  their  lack  of  clarity, 
including  the  notions  of  ‘reciprocal  specialisation  agreements’,  ‘joint  production’, 
‘joint  distribution’  and  ‘price  fixing’  in  the  context  of  joint  distribution.  Some 
respondents also consider that unilateral specialisation, as defined in Article 1(1)(b) of 
the  Specialisation  BER,  should  not  be  restricted  to  agreements  between  two  parties.  In 
addition, the application of the definitions of the Specialisation BER to different types of 
specialisation agreements was considered difficult. 

The  scope  of  the  Specialisation  BER  and/or  in  Chapter  4  of  the  Horizontal  Guidelines 
was  considered  limited  and  respondents  indicated  that  the  scope  should  be  updated 
and/or expanded to include other  types  of  specialisation  and  production  agreements 
(e.g. tolling agreements). 

Respondents consider that the conditions to benefit from the exemption require further 
clarification, in particular whether there is a requirement to accept exclusive purchase or 
supply obligations to benefit and the scope of the exemption between joint ventures and 
parent companies. 

Several  respondents  consider  that  the  current  markets  share  threshold  of  20%  is  too 
low  to  exempt  pro-competitive  horizontal  specialisation  agreements.  Some  respondents 
also consider that a safety margin should be introduced in case an agreement surpasses 
the threshold. A few respondents request to increase of the market share threshold, while 
they  also  referred  to  issues  concerning  the  calculation  of  the  market  shares,  the 
implementation  period  during  which  the  exemption  continues  to  apply  once  the  20% 
share has been exceeded (up to 2 calendar years) or the coherence between the threshold 
of the Specialisation BER and other EU and national competition law regulations. 

In  addition,  respondents  also  request  further  clarification  and  guidance  regarding  ‘non-
compete’  clauses  after  the  conclusion  of  the  horizontal  cooperation  agreement;  the 
boundaries between the Horizontal Guidelines, the VBER and the subcontracting Notice, 
in  particular  whether  the  Horizontal  Guidelines  covers  all  forms  of  horizontal 
subcontracting  agreements  while  the  VBER  and  the  subcontracting  Notice  cover  only 
vertical subcontracting agreements; and the clarification of the relationship between the 
Specialisation BER and other EU competition law rules such as the TTBER. 

117 

 
 
 
Finally,  as  indicated  in  the  section  on  General  Issues  (Annex  4,  section  4.1.1  above), 
respondents  also  raise  all  or  some  of  these  issues  in  connexion  with  horizontal 
Specialisation agreements. 

4.1.4.  Information exchange (Chapter 2 of the Horizontal Guidelines) 

Respondents  consider  that  the  chapter  contains  too  little  guidance  to  allow  for  self-
assessment of horizontal cooperation agreements. They consider that there are many pro-
competitive  forms  of  information  exchange  that  are  currently  not  addressed  in  the 
chapter. Horizontal cooperation mentioned in this regard cover information exchange in 
mergers  and  acquisitions  projects  or  the  initial  stages  of  horizontal  cooperation,  in 
restructuring scenarios, for the purposes  of the compilation  of industry  statistics, in  the 
context of eco-systems and in areas where interoperability is needed.  

Respondents  from  the  banking,  automotive,  insurance  and  agricultural  sectors  feel  that 
their  sectors  would  benefit  from  individual  guidance.  Other  respondents  requested 
individual  guidance  on  information  exchange  in  carbon  emissions  trading,  trade 
associations and joint purchasing cooperation.  

Some  respondents  also  consider  that  legal  certainty  is  lacking  due  to  the  absence  of  a 
market share threshold or other safe harbour. 

4.1.5.  Purchasing agreements (Chapter 5 of the Horizontal Guidelines) 

A  wide  array  of  respondents  covering  individual  companies,  business  associations 
(retailers in particular) and law firms consider that the market share thresholds of 15% 
are  too  low  to  exempt  pro-competitive  purchasing  agreements.  Some  respondents 
propose a general increase of the market share threshold to between 20 and 30% in order 
to  align  them  with  other  EU  competition  law  regulations,  such  as  the  R&D  BER,  the 
EUMR  or  the  VBER.  Other  respondents  propose  a  differentiation  of  the  market  share 
threshold with different percentages applying to the purchasing and selling markets. 

Several law firms and associations of competition lawyers and economists consider that 
legal  certainty  is  lacking  due  to  a  perceived  difficulty  to  distinguish  between  joint 
purchasing and buying cartels as both involve an agreement on purchase prices. In this 
regard they point at recent Commission decisions covering buying cartels and the need to 
clarify  the  factors  that  influence  the  distinction  between  legitimate  purchasing 
arrangements and by object buying cartels. Few respondents raised uncertainty about the 
importance  of  the  form  of  the  joint  purchasing  agreement  or  the  degree  of  integration 
required  and  about  the  distinction  between  joint  purchasing  and  joint  bidding  or  joint 
negotiation. 

Several law firms and associations of competition lawyers and economists consider that 
the  underlying  economic  approach  to  joint  purchasing  agreements  and  the  balance 
between efficiencies created by the joint purchasing agreement and greater buyer power 

118 

 
 
 
is  too  much  focused  on  the  impact  downstream  through  the  pass-on  of  efficiencies  to 
consumers, in  particular, in  the form  of lower prices. The Horizontal Guidelines would 
not sufficiently address harmful effects of buyer power on suppliers or competitors. 

Finally,  several  respondents  indicated  that  the  Horizontal  Guidelines  do  not  provide 
sufficient  guidance  on  retail  alliances  nor  enough  practical  examples.  Respondents 
representing  retailers  complained  about  the  fragmented,  national  purchasing  markets 
mainly  due  to  the  supply  strategy  of  manufacturers.  This  would  result  in  an  artificial 
increase in the negotiation power of retail alliances compared to such large suppliers and 
is  further  aggravated  by  the  use  of  territorial  supply  constraints  by  the  latter.  A 
respondent criticises the fact that joint purchasing agreements by a group of retailers are 
subject to two consecutive tests, namely first an assessment of the horizontal agreement 
and,  subsequently,  an  assessment  of  the  vertical  agreements.  According  to  this 
respondent,  horizontal  elements  should  neither  be  viewed  in  isolation  nor  take 
precedence  over  vertical  elements  but  should  instead  be  assessed  together.  Other 
respondents,  mainly  representing  suppliers,  are  lacking  guidance  in  Chapter  5  of  the 
Horizontal  Guidelines  on  certain  practices  applied  by  retail  alliances,  such  as  (i) 
collectively extracting fees unrelated to any genuine service, (ii) collective delisting, and 
(iii) anti-competitive exchange of information. They also request a clarification about the 
position  of  retailers,  in  particular,  as  regards  their  dual  role  as  both  customers  of 
manufacturers’ products and competitors with their own private label products. 

4.1.6.   Agreements on commercialisation (Chapter 6 of the Horizontal 

Guidelines) 

Some  respondents  consider  that  the  market  share  threshold  of  15%  is  too  low  to 
exempt procompetitive commercialisation agreements. Some respondents propose in this 
regard to add a general exemption for joint sales activities and marketing agreements if 
the combined market share of the cooperating companies is below 15%. 

Several respondents consider that the chapter should provide more elaborate guidance on 
joint  bidding  and  consortia  agreements,  including  non-indispensable  consortia  (i.e. 
those in which the parties could compete or meet the tender requirements on their own). 
The definition of relevant markets for stand-alone temporary unions or consortia and the 
assessment of price-fixing in the framework of consortia were also raised by respondents 
as issues. 

Moreover,  respondents  also  raised  the  need  to  clarify  the  concept  of  ‘joint  sales’  and 
‘price-fixing’ in the context of commercialization agreements (besides consortia), and to 
clarify  the  interplay  between  Chapter  6  of  the  Horizontal  Guidelines  and  other  EU 
competition rules, in particular those covering vertical aspects (e.g. the VBER). 

Finally,  as  indicated  in  the  section  on  General  Issues  (Annex  4,  section  4.1.1  above), 
in  connexion  with  horizontal 
respondents  also 
commercialisation agreements. 

raise  some  of 

issues 

these 

119 

 
 
 
4.1.7.  Standardisation agreements (Chapter 7 of the Horizontal Guidelines) 

Several  respondents  commented  on  the  guidance  in  this  chapter  on  the  interaction 
between the protection of intellectual property rights and competition law.  

Several  respondents  consider  that  the  chapter  contains  insufficient  guidance  on  the  so-
called  FRAND  commitment  (the  commitment  to  ensure  access  to  the  users  of  the 
standard on fair, reasonable and non-discriminatory terms and conditions). They point in 
this regard specifically to the safe harbour condition to license to all third parties on 
FRAND terms with respondents expressing opposing views and considering that the safe 
harbour  condition  in  paragraph  285  of  the  Horizontal  Guidelines  leaves  room  for 
different  interpretations.  Other  respondents  consider  the  meaning  of  FRAND  to  be 
unclear, including as regards the criteria to determine whether a license offer is FRAND.  

Several respondents also point out that the requirement in the Horizontal Guidelines for 
unlimited  participation  in  the  setting  of  the  standard  is  too  strict  and/or  that  the 
conditions for allowed restricted participation are too difficult to meet in practice.  

Other respondents raised the problem of transparency with regard to Standard Essential 
Patents  and  revealed  diverging  views  as  to  the  disclosure  requirements  in  the 
Horizontal  Guidelines,  in  particular  as  regards  whether  the  Guidelines  should  require 
blanket disclosure or rather specific disclosure of Standard Essential Patents prior to the 
adoption of the standard.  

Some  respondents  also  consider  that  legal  certainty  is  lacking  due  to  the  absence  of  a 
market share threshold or other safe harbour. 

*** 

120