Two companies in the same industry decide to develop a new technology together, because neither could pay for it alone. Commercially that is sensible; from the perspective of competition law it is sensitive: in cooperating, competitors exchange information, share results and sometimes also the market. Article 101 of the Treaty on the Functioning of the European Union prohibits agreements restricting competition which may affect trade between Member States, but allows exemptions. For research and development, the exemption is laid down by Commission Regulation (EU) 2023/1066, which applies from 1 July 2023 until 30 June 2035 and is directly applicable in Slovakia and Czechia alike. Agreements incapable of affecting trade between Member States are subject to national competition legislation; both the Slovak and the Czech statutes, however, exempt them from the prohibition where they satisfy the conditions of the EU block exemptions (Section 4(5) of Act No. 187/2021 Coll., Section 4(1) of Act No. 143/2001 Sb.).
Which agreements the Regulation covers
The Regulation covers agreements between two or more parties on joint research and development, on paid-for research and development in which one party finances and the other develops, and on the joint exploitation of the results of such cooperation. For each type it distinguishes whether the agreement also includes joint exploitation of the results, such as joint production or licensing, or not (Article 1(1)(1) of Regulation 2023/1066). The exemption also covers provisions on the assignment of intellectual property rights or on licences where they are directly related to the implementation of the agreement, are necessary for it and are not its main object (Article 2(3)).
The first condition: access to the results
The exemption applies only where the agreement ensures that the results are not locked up with one party:
The research and development agreement must stipulate that all the parties have full access to the final results of the joint research and development or paid-for research and development, for the purposes of further research and development and of exploitation of the results.
Access must extend to all resulting intellectual property rights and know-how and must be granted as soon as the results are available (Article 3(3)). The parties may pay each other for access, but the fee must not be so high as to make access practically impossible (Article 3(4)). Research institutes, academic bodies and undertakings which supply research as a service and do not normally exploit the results themselves may agree that they will use the results only for further research (Article 3(5)). Where the agreement does not include joint exploitation, it must also ensure each party access to the others’ pre-existing know-how where that is indispensable for exploiting the results (Article 4).
The second condition: market share and time
Where the parties are not competitors, the exemption applies throughout the duration of the research and development regardless of their market share (Article 6(2)). Where they are competitors, their combined share at the time the agreement is concluded is decisive. For joint research and development, the exemption applies where the parties’ combined market share on the relevant product and technology markets does not exceed 25% (Article 6(1)). A competitor also includes a potential competitor, that is, an undertaking which, absent the agreement, would realistically consider beginning to supply a competing product or technology within no more than three years (Article 1(1)(15)).
Where the parties exploit the results jointly, the exemption continues for a further seven years from the first placing of the contract products or technologies on the internal market (Article 6(3)). Thereafter it lasts only while the combined share does not exceed that same threshold; once exceeded, it applies for a further two calendar years (Article 6(4) and (5)). Market shares are calculated from sales value for the preceding calendar year; where those data are unavailable, from sales volume, and failing that from estimates based on other reliable market information (Article 7).
Clauses that destroy the exemption
The Regulation lists hardcore restrictions in respect of which the exemption does not apply to the entire agreement (Article 8). They include, in particular:
- a prohibition on carrying out research and development independently or with third parties in an unconnected field or after the end of the joint project,
- a restriction of output or sales, with narrow exceptions for joint production or distribution,
- the fixing of prices for sales to third parties, again with an exception for joint distribution through a joint team or undertaking,
- a restriction of passive sales into particular territories or to particular customers.
Excluded restrictions are treated more leniently (Article 9). These are an obligation not to challenge the validity of patents and other intellectual property rights of the parties after the research ends, and a prohibition on granting licences to third parties where the agreement does not provide that the results will be exploited by one of the parties. Such a clause loses the exemption on its own, and the remainder of the agreement may retain it where the clause is severable (Article 9(3)). Instead of a no-challenge obligation, the parties may agree a right to terminate the cooperation if one of them challenges the validity of the rights (Article 9(2)).
An agreement failing the conditions of the Regulation is not automatically prohibited. Its compatibility with the competition rules must, however, be assessed individually, which is more demanding and less predictable than satisfying the clear conditions of the Regulation.
How to structure the agreement
- Establish whether you and your partner are actual or potential competitors and, for competitors, document your combined market share as at the date of signature.
- Regulate all parties’ access to the final results and, where needed, to pre-existing know-how, including the amount of any fee.
- Do not restrict your partner’s research outside the project or after it ends, and avoid pricing and territorial arrangements outside the exceptions in the Regulation.
- Where results are exploited jointly, monitor the expiry of the seven-year period and the development of market share.
If you protect the outcome of the cooperation by a patent, see also our answer on what each co-owner of a patent may do. We prepare joint research and development agreements with an aligned competition framework, confidentiality and rules on exploitation of the results under our research and development collaboration agreement service. Information exchanged during negotiations before signature is addressed by a non-disclosure agreement.
This article provides general legal information as at 12 September 2026. It does not constitute legal services or advice on your specific matter. Laws change and the details of your situation may differ. Check the appropriate course of action or contact us before making a decision.
