2.2.2 Market sharing which can benefit from the De Minimis Notice

In the context of R&D agreements covered by Commission Regulation (EU) 1217/10, where parties allocate between them individual tasks (such as production or distribution) or impose restrictions on each other regarding the exploitation of the results (such as restrictions in relation to certain territories or customers), this is not considered a hardcore restriction.1. Another example would be where the parties agree on the limitation of active sales of the contract products2., or contract technologies3., in territories (or to customers) which have been exclusively allocated to one of the parties by way of specialisation in the context of exploitation.4.

Although passive sales restrictions agreed between the parties to an R&D agreement are considered hardcore restrictions, the requirement to exclusively license the results of the joint R&D to another party is not.5. The parties may also restrict their freedom to sell, assign or license products, technologies or processes which compete with the contract products or contract technologies during the period for which the parties have agreed to jointly exploit the results.6.

As to technology transfer agreements7. covered by Commission Regulation (EU) 316/2014, the limitation of active and passive sales of the contract products in territories (or to customers) which have been exclusively allocated to one of the parties, if it is part of a non-reciprocal agreement, is not considered a hardcore restriction.8. Another example would be, in a non-reciprocal agreement, prohibiting a party from producing within the exclusive territory of the other party.9.

A licensor may have several licensees, where some were already a competitor of the licensor at the time of concluding their license while others were not. In such a scenario, it is not considered a hardcore restriction if, in a non-reciprocal agreement, active sales by a licensee are restricted in order to protect the exclusive territory (or customer group) allocated to another licensee which was not a competitor of the licensor when it concluded its licence.10. Finally, an obligation on the licensee to produce the contract products only for its own use (provided that the licensee is not restricted in selling the contract products as spare parts for its own products) is not considered a hardcore restriction.11. The same is true for an obligation on the licensee, in a non-reciprocal agreement, to produce the contract products only for a particular customer, where the licence was granted in order to create an alternative source of supply for that customer (so-called dual sourcing).12.