FSA Response HBER Consultation – Confirmation

12 February 2020. Article 101(1) of the Treaty on the Functioning of the European Union (‘the Treaty’) prohibits agreements between undertakings that restrict competition unless they generate efficiencies in line with Article 101(3) of the Treaty. Agreements generate efficiencies in line with Article 101(3) of the Treaty if they contribute to improving the production or distribution of goods or services, or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits; they only impose restrictions that are indispensable for the attainment of these objectives and do not eliminate competition in respect of a substantial part of the product in question. The prohibition contained in Article 101(1) of the Treaty covers, amongst others, agreements entered into between actual or potential competitors (so-called ‘horizontal agreements’).

Commission Regulations (EU) No 1217/2010 (Research & Development Block Exemption Regulation – ‘R&D BER’) and 1218/2010 (Specialisation Block Exemption Regulation – ‘Specialisation BER’), together referred to as the ‘Horizontal block exemption regulations’ (or ‘HBERs’), exempt from the prohibition contained in Article 101(1) of the Treaty those R&D and specialisation agreements for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty. The Commission Guidelines on horizontal cooperation agreements (‘HGL’) provide binding guidance on the Commission for the interpretation of the HBERs and for the application of Article 101 of the Treaty to other horizontal agreements. The HBERs will expire on 31 December 2022. This public questionnaire represents one of the methods of information gathering in the evaluation of the HBERs, together with the HGL, which was launched on 5 September 2019. The purpose of this questionnaire is to collect views and evidence from the public and stakeholders on how the current rules work for them. The Commission will evaluate the current HBERs, together with the HGL, based on the following criteria:

  • Effectiveness (Have the objectives been met?),
  • Efficiency (Were the costs involved proportionate to the benefits?),
  • Relevance (Do the objectives still match current needs or problems?),
  • Coherence (Does the policy complement other actions or are there contradictions?), and
  • EU added value (Did EU action provide clear added value?).


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