R&D agreements—drafting for the EU R&D BER 2023—checklist

Copyright © 2025 LexisNexis
Produced in partnership with Denis Fosselard of Ashurst and Fiona Garside of Ashurst
Checklists

R&D agreements—drafting for the EU R&D BER 2023—checklist

Copyright © 2025 LexisNexis

Produced in partnership with Denis Fosselard of Ashurst and Fiona Garside of Ashurst

Checklists
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This Checklist sets out the essential points that should be considered when drafting new Research and Development (R&D) agreements, or updating existing R&D agreements, to assess whether they fall within the EU R&D BER 2023 (Commission Regulation (EU) 2023/1066 on the application of Article 101(3) of the Treaty on the Functioning of the European Union (TFEU) to certain categories of research and development agreements). This Checklist is not intended to be a comprehensive guide to the EU R&D BER 2023 but should be used where a commercial lawyer wants to ensure that an R&D agreement falls within the EU R&D BER 2023 and accompanying Horizontal Guidelines.

Introduction to the EU R&D BER 2023

Any agreement which affects trade or restricts competition in the EU may be subject to the prohibition on anti-competitive agreements under Article 101(1) TFEU. However, an agreement will not be prohibited if it:

  1. •

    meets the criteria for exemption under Article 101(3) TFEU, or

  2. •

    benefits from a relevant block exemption

R&D agreements are agreements

Denis Fosselard
Denis Fosselard

Partner, Ashurst

Denis is a partner and head of the Antitrust, Regulation and Foreign Investment department in Brussels. Denis is a dual qualified lawyer (Rome and Brussels Bar) and speaks fluent Italian, French and English. His practice focuses on all aspects on EU antitrust law and he has 20 years' experience in advising leading European corporates in relation to behavioural and merger control cases. He also has significant experience in assisting companies in State aid investigations. 

Denis regularly represents clients before both the European Commission and national competition authorities in Italy, Belgium, and so on, as well as the EU General Court and Court of Justice in antitrust and other Community law proceedings.

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Fiona Garside
Fiona Garside

Senior Expertise Lawyer, Ashurst

Fiona Garside is a Senior Expertise Lawyer in Ashurst's Antitrust, Regulation and Foreign Investment team. She has advised on a wide range of EU and UK competition law matters, including cartel investigations, merger control, market reviews/investigations and competition law compliance, with particular experience in financial services.  

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