ERU, Alm.del - 2019-20 - Bilag 171: Notat og dansk høringssvar vedr. Europa-Kommissionens evaluering af om vejledningen for horisontale samarbejdsaftaler mellem virksomheder (de såkaldte horisontale retningslinjer)., fra erhvervsministeren

Erhvervsudvalget 2019-20
ERU Alm.del Bilag 171
Offentligt

24. February 2020

Response by the Danish Government to the evaluation of the EU

competition rules on horizontal agreements between companies

The Danish Government welcomes the opportunity to comment on the

evaluation of the EU competition rules on horizontal agreements between

companies.

The following remarks are

aimed at the evaluation of the Commission’s

guidelines on the applicability of Article 101 of the Treaty to horizontal co-

operation agreements (the Horizontal Guidelines).

Defining the boundaries for legal and illegal agreements can sometimes be

difficult and relies on a case-by-case approach. In this respect, the Horizon-

tal Guidelines is a very valuable tool providing helpful and necessary guid-

ance to both the businesses engaging in horizontal cooperation and the na-

tional competition authorities when dealing with the legal questions arising

from horizontal cooperation.

Continue to ensure free and fair competition

Since horizontal cooperation often will take place between actual or poten-

tial competitors, it is crucial that horizontal cooperation respects the com-

petition rules in order to avoid negative effects for markets and citizens and

thus jeopardizing the objectives of the competition rules. Therefore, the

Danish Government do not call for a fundamental change of the Horizontal

Guidelines as we believe that free and fierce competition is the best way to

ensure efficient price-setting, choice and innovation, thus making Euro-

pean companies able to compete globally.

However, given the importance of the guidelines, it is essential that they

reflect new developments. Therefore, the Danish Government urge the

Commission to:

Update the guidelines in the light of the digital economy

New business models and new technologies have led to novel forms of co-

operation, thus making it harder for businesses

–

and sometimes the author-

ities - to navigate on what is allowed and what is not by the EU competition

ERU, Alm.del - 2019-20 - Bilag 171: Notat og dansk høringssvar vedr. Europa-Kommissionens evaluering af om vejledningen for horisontale samarbejdsaftaler mellem virksomheder (de såkaldte horisontale retningslinjer)., fra erhvervsministeren

2/2

law. Without the necessary guidance, the willingness to engage in such co-

operation may be hampered.

Thus, there is a need to update the Horizontal Guidelines in the light of the

digital economy. To this end, there is a need to clarify the application of

Article 101(1) and 101(3) to agreements in new areas such as platforms,

digital ecosystems and data. In order to make the guidelines useful for both

businesses and authorities it is that the guidelines contains as many practi-

cal examples as possible.

Focus on sustainable agreements

In order to deliver on the goals of the EU’s Green Deal,

there is a fast grow-

ing demand for sustainable solutions and consequently a growing require-

ment for advice on how to assess such initiatives in relation to the compe-

tition rules. Thus, defining the scope and interpretation of EU competition

law as clearly as possible is needed.

The Horizontal Guidelines is a good opportunity to provide more clarity to

business on how to put together sustainability agreements without dis-

torting competition. However, it is important that the guidelines draw up

the lines between acceptable sustainability agreements, and agreements,

which breach Article 101(1), either because the agreements may harm com-

petition as such or because they serve as a cover up for a cartel agreement.

As sustainability is difficult to measure it is important that the guidelines

also explain what it takes to fulfil the conditions in Article 101(3); that the

agreement must create objective efficiencies, which benefit consumers and

the agreement is indispensable to obtain these efficiencies and do not un-

necessarily restrict or eliminate competition. In this respect, it is important

that guidelines emphasize that efficiencies will need to be substantiated.

We hope these comments will be useful for your evaluation on the Hori-

zontal Guidelines. The Danish Ministry of Industry, Business and Financial

Affairs would be at your disposal to further elaboration or any follow-up

questions you may have.

Finally, we refer to the response by The Danish Competition and Consumer

Authority which in its capacity of independent competition authority will

provide more detailed comments on both the two Block Exemption Regu-

lations for horizontal co-operation agreements (R&D BER and Specialisa-

tion BER) as well as the Horizontal Guidelines.