Comments on European Commission’s review of rules applicable to horizontal co-operation agreements

Prepared by the Commission on Competition

Introduction
ICC is pleased to comment on the Commission’s draft Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements (the “Draft Guidelines” or “Draft”) and the Commission’s proposed revised block exemption regulations regarding Research and Development and Specialisation.

The Commission published its current guidelines on horizontal cooperation in January 2001 and the current block exemptions expire at the end of 2010 so the Commission’s revised documents are a necessary as well as a useful and timely clarification of its view on a key area of competition policy.
On the whole ICC warmly welcomes the Commission’s proposals which, for the most part, provide increased insight into the Commission’s enforcement policies and much needed additional guidance for companies. In particular, ICC welcomes the inclusion of a dedicated section relating to information exchange and the efforts to clarify the rules on standard setting. While these two sections are the main focus of ICC’s comments, we will also comment on some other proposed changes notably regarding R&D.
Our main comments on changes that might be incorporated in the final versions of the regulations and guidelines concern the need for more and better focused examples that would enable companies to carry out the necessary self-assessment of their agreements’ compatibility with Article 101 of the Treaty on the Functioning of the European Union with greater confidence.

In this context, it is regrettable that DG COMP has not in appropriate circumstances been more open to providing informal individual guidance to companies to help them carry out this self-assessment.

While the publication of better guidelines is of considerable assistance to companies, activation of the possibility to provide guidance on novel questions in individual cases would also be very helpful.