Competition law and research and development agreements
Produced in partnership with K&L Gates LLP
Competition law and research and development agreements

The following Competition practice note Produced in partnership with K&L Gates LLP provides comprehensive and up to date legal information covering:

  • Competition law and research and development agreements
  • Potential competition concerns
  • Framework for assessing R&D agreements
  • Application of R&D block exemption
  • Market share threshold
  • Type of agreement
  • Conditions for exemption
  • No hardcore restrictions
  • Excluded restrictions
  • Duration of safe harbour protection
  • More...

Research and Development agreements (R&D agreements) are agreements under which two or more parties agree to jointly execute research work and/or jointly develop the results of the research.

Such agreements can be highly effective in driving innovation and economic progress as they often combine complementary skills and assets, and thus result in improved or new products and technologies being developed and marketed more cheaply and rapidly than would otherwise be the case. They can also facilitate a wider dissemination of knowledge, which may trigger further innovation.

Accordingly, EU competition law generally accepts that certain contractual restrictions on the parties’ independent activities may be necessary in order to encourage joint R&D initiatives. However, restrictions in R&D agreements are sometimes designed to, or have the effect of, restricting competition. It is therefore essential to carefully analyse an R&D agreement between actual and potential competitors to ensure it does not fall foul of the law.

Potential competition concerns

Article 101(1) TFEU prohibits agreements, the object or effect of which is to restrict competition.

Most R&D agreements do not fall under Article 101(1) TFEU, in particular where they relate to cooperation in R&D at an early stage, far removed from the exploitation of possible results.

However, R&D agreements may sometimes infringe Article 101(1) TFEU in the following ways:

  1. first, they may reduce or slow down innovation, leading to fewer or inferior products coming

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