The European Commission published an evaluation that summarises the findings of the evaluation of the two horizontal block exemption regulations on Research & Development and specialisation agreements (“HBERs”), together with the Horizontal Guidelines. The purpose was to allow the Commission to determine whether it should let the HBERs lapse, prolong their duration or revise them.

According to the evaluation:

• The HBERs and the Guidelines are still relevant since they provide legal certainty to businesses, national competition authorities and national courts,
• However, fields such as digitalisation and sustainability goals can be improved. In addition, some of the provisions in the HBERs are considered rigid and complex or unclear and difficult to interpret by businesses.

A couple of issues were identified by the Commission with regard to the functioning of these rules:

• The conditions for exemption in the R&D BER were questioned by stakeholders and these conditions may no longer allow for the identification of all pro-competitive R&D agreements.

• More clarity was asked for the Specialisation BER since it was considered too narrow.
• Stakeholders generally consider that safe harbours in the form of market share thresholds ease assessing whether an agreement could benefit from an exemption.
• Some provisions of the HBERs and Horizontal Guidelines are considered unclear or overly strict, in particular with respect to information exchange, R&D, production. Moreover, the HBREs and the Horizontal Guidelines offer limited guidance with regard to market developments (specially for digitalisation and the pursuit of sustainability objectives through horizontal agreements.
• Finally, the Horizontal Guidelines were criticised by stakeholders. According to them, it did not provide sufficient legal certainty for the self-assessment of agreements since there is no dedicated chapter.

The next step for the Commission is to launch an impact assessment to consider the identified issues. Stakeholder have the possibility to make comments. The Commission will publish a draft of the revised rules for stakeholder comments.

(European Commission – 06.05.2021)

ACM launches investigations into misleading sustainability claims in three sectors

The Netherlands Authority for Consumers and Markets (ACM) has launched investigations into misleading sustainability claims in sector for energy, dairy products, and clothes due to the major role of these sectors in consumers’ purchase decisions.

Earlier this year, ACM published the rules of thumb for honest sustainability claims:

1. Make clear what sustainability benefit the product offers
2. Substantiate your sustainability claims with facts, and keep them up-to-date
3. Comparisons with other products, services, or companies must be fair
4. Be honest and specific about your company’s efforts with regard to sustainability
5. Make sure that visual claims and labels are useful to consumers, not confusing

ACM has contacted over 170 businesses in these sectors to check their sustainability claims using these rules of thumb. This applies to products sold online and offline. From mid-June, ACM will assess the effect of this action, and will subsequently publish the results thereof. ACM can impose fines or orders subject to periodic penalty payments up to 900,000 euros per violation on businesses that harm consumers with misleading claims they cannot fulfill.

(ACM- 03.05.2021)

This document provides general information on the subject and does not constitute a legal opinion or recommendation. Consulting a specialist is recommended before taking an action. No claim arising from the content of or relating to this document can be asserted against NAZALI.