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Collaboration and information flows between competitors can be beneficial. For example, they may foster innovation, allow the commercialisation of new products, enhance and speed up product development, and facilitate efficient sales and marketing or reduce distribution costs. They may also help to achieve Government public policy objectives (for example, social, health or environmental objectives) without the need for legislation or regulation. Generally beneficial collaboration is permitted by competition law - either it does not breach the prohibitions on anti-competitive agreements in the first place or it meets the criteria for exemption.
However, some types of collaboration between competitors is inherently harmful. They may prevent, restrict or distort competition, restrict innovation and/or limit economic growth. Harmful collaboration is prohibited by competition law.
The OFT recognises it can sometimes be complex for business, Government policy makers and their advisors to decide whether a form of collaboration would be permissible under competition law. This may result in some proposed pro-competitive collaboration and information exchanges not being taken forward for fear of infringing competition law.
With this in mind, the OFT has introduced a Short Form Opinion procedure to provide advice on prospective collaboration agreements raising novel or unresolved questions of competition law.
The OFT has also been actively engaging with the Commission in relation to its review of the current EU regime for the assessment of horizontal co-operation agreements (the Horizontals Review) with the objective, in particular, of assisting the Commission to improve the general guidance given to businesses and their advisers in the Horizontal Guidelines. [see note 1] The Horizontal Guidelines are the key source of general guidance to businesses considering horizontal collaboration agreements within the EU.
On 11 June 2010 the OFT hosted a roundtable discussion on the Commission's draft Horizontal Guidelines. This was a follow-up event to the Roundtable discussion on competitor collaboration held on 15 October 2009 at which there was general support for the inclusion of some guidance in the Horizontal Guidelines on two areas that were causing practical difficulty - information exchange and collaboration to achieve Government policy objectives. The event was timed to fall within the Commission's consultation period on the revised draft Horizontal Guidelines and block exemption regulations, which ran between 4 May and 25 June 2010.
The purpose of the event was to gather senior representatives and experts from the Commission, business, Government, academia, law firms and economic consultancies, to discuss two subject areas in the Guidelines: collaboration to achieve Government public policy objectives and information exchange. Seven speakers were invited to set out their views on these two areas and participants then debated the issues that business, policy makers, legal and economic advisors face when dealing with these areas in practice.
The event gave participants an opportunity to discuss their views directly with the Commission and will inform the OFT in developing its own views on the Horizontals Review.
Contact details for feedback questions
If you have any comments, feedback or questions regarding the roundtable discussion on the Commission's Guidelines, please contact Marc Braithwaite (firstname.lastname@example.org or 0207 211 8732).
Synopsis of event proceedings
note 1. The review covers the European Commission's Guidelines on the applicability of Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union, the TFEU) to horizontal co-operation agreements (Horizontal Guidelines); Regulation (EC) No 2658/2000 on the application of Article 81(3) of the Treaty (now Article 101 (3) of the TFEU) to categories of specialisation agreements (Specialisation Block Exemption Regulation); and Regulation (EC) 2659/2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements (R&D Block Exemption Regulation). The current rules expire on 31 December 2010.
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