Application of the RDBE
Many R&D agreements are outside the scope of Article 101 altogether:
• R&D agreements at a ‘theoretical’ stage;
• agreements between non-competitors;
• outsourcing to specialist R&D organisations;
• most collaboration that does not extend to joint exploitation.
The RDBE is available to the following types of agreement:
• joint R&D and joint exploitation of the results of the R&D;
• joint exploitation of the results of R&D arrived at by previous joint R&D between the same parties;
• joint R&D without joint exploitation of the results.
The following contractual obligations are also exempt:
• a non-compete obligation (in the R&D);
• any other clauses directly related to the R&D agreement and necessary for its implementation (e.g. those concerning IP rights).
The following conditions apply:
• all parties to have access to results of R&D for purposes of further research and for further exploitation (unless a commercial research institute/academic body);
• where agreement is R&D only, each party must be free to exploit results independently (although non-competitors may be limited to one or more fields of use).
Market share thresholds and duration of the exemption
Non-competitors (if Article 101 applies at all).
• R&D only: duration of exemption unlimited; market share unlimited.
• Exploitation of results: exemption lasts for 7 years regardless of market share; thereafter indefinitely provided combined market share remains ≤25%.
Competitors (actual or potential).
• R&D only: duration of exemption unlimited, provided combined market share ≤25% at date of agreement.
• Exploitation of results: exemption lasts for 7 years regardless of whether market share now >25%; thereafter indefinitely provided combined market share remains ≤25%.
• R&D stage: market for products capable of being improved or replaced by the contract products (i.e. those developed under the contract).
• Exploitation of results stage: market for the contract products and its substitutes.
The RDBE includes a list of terms which are regarded as serious restrictions of competition; any agreement which contains them will be outside the scope of the block exemption (and would be unlikely to fulfil the Article 101(3) criteria).
R&D The acquisition of know-how relating to products or processes by the carrying out of analysis, study, experimentation etc. and the obtaining of IPRs for the results.
Exploitation of results Production/distribution of contract products/processes or assignment/licensing of IPRs/know-how required to manufacture.
Joint (R&D/exploitation) Work carried out by a joint team, organisation or undertaking/jointly entrusted to a third party/allocated between the parties by way of specialisation (to be distinguished from bundling of the results of the parties’ previous individual research).
Actual competitor An undertaking which supplies products which compete with the contract products (i.e. products arising out of the joint R&D).
Potential competitor An undertaking that would switch to supplying products which compete with the contract products in response to a small and permanent increase in the price of the latter.
Outside the RDBE
The Guidelines on horizontal cooperation provide further assistance in relation to R&D agreements between competitors.
Agreements which fall outside of the block exemption due to the market shares of the parties do not necessarily restrict competition. However, the stronger the combined position of the parties on existing markets and/or the more competition in innovation is restricted, the more likely it is that Article 101(1) will apply. If Article 101(1) applies, more detailed analysis will be required to determine whether the agreement fulfils the Article 101(3) exception criteria.
Further guidance is given on assessment of the relevant product market (which will depend on whether the R&D is directed towards innovation of existing products/technologies or to the creation of new products/technologies).