FOSTA guidelines on compliance with antitrust rules in the promotion of research projects

The following are antitrust guidelines to be observed in the non-profit activities of the Forschungsvereinigung Stahlanwendung e. V. (the “FOSTA e. V.”). In addition to these FOSTA e. V. guidelines, the general antitrust guidelines of the collective organizations of the steel industry in Germany, status: November 2023, must also be observed.

PRINCIPLES

FOSTA e. V. pursues the statutory purpose of promoting the public good in the field of research and development, in particular the application technology of iron and steel. This purpose is achieved by awarding primarily public grants to other non-profit research institutions for the implementation of research projects, as well as informing the public about the research results achieved.

FOSTA e. V. conducts basic research close to application. In doing so, FOSTA e. V. works on a project basis with companies and research institutions in accordance with the rules of the Federal Ministry for Economic Affairs and Energy within the framework of the Industrial Collective Research (IGF) programme. This collective research is characterized by its pre-competitive nature and predominant distance from the market.

The actual research is regularly not carried out by FOSTA e. V. itself, but by non-profit university institutes and other non-profit research institutions. FOSTA e. V. actively shapes the research in the individual projects already during the pre-selection of projects in the review panel (Kuratorium) and then during the accompaniment of the projects in the so-called project-accompanying committees. Publications of the research results take place during the project as well as after the project has been completed.

Since current and potential competitors may be involved in FOSTA e. V.’s pre-competitive activities and in particular in the Kuratorium and the project-accompanying committees, FOSTA e. V. has adopted these antitrust guidelines.

The aim of the antitrust guidelines is to prevent conduct that could potentially lead to market foreclosure against innovative technologies and companies or to a reduction in innovation competition.

GUIDELINES

Within FOSTA e. V.’s activities, only projects are funded that are pre-competitive and comply with the rules of the Federal Ministry for Economic Affairs and Energy for the funding of Industrial Collective Research. Among other things, these rules prohibit individual research projects that could lead to unilateral competitive advantages for individual companies.¹

In addition, the following rules must be observed in the activities of FOSTA e. V.:

• Meetings of the Board of Trustees or the project-accompanying committees of FOSTA e. V. (as well as any other meetings involving companies) are convened in writing, including an agenda that has been reviewed in advance for antitrust innocuousness. The essential course of the meetings must be recorded in minutes.

• All meetings of the Kuratorium and the project-accompanying committees of FOSTA e. V. (as well as any other meetings involving companies) must be attended by an employee of FOSTA e. V. or, in individual cases, a comparably trained substitute, who—together with all participating companies and persons—must ensure compliance with antitrust rules.

• At the beginning of each meeting, the chair reminds participants to observe the antitrust requirements. Within meetings of the Kuratorium and the project-accompanying committees (as well as any other meetings involving companies), discussions may be held that serve the implementation of the specific research projects or the general work of FOSTA e. V. It must be ensured that antitrust principles obviously also apply to all conversations on the sidelines of meetings.

In particular, there must be no exchange of information or coordination between the participating companies regarding:

• Any possible individual and concrete exploitation of the results of individual research projects, e.g., transfer to prototype status or to prototypical processes.
• Customarily confidential information on the activities of the participating companies, such as purchase prices, volumes, and sources of materials; capacity utilization; inventory levels; delivery times; sales figures and revenues; customers; market shares; costs; investments—as opposed to information that is publicly known.
• Costs of research projects if they were to be carried out by the companies themselves.
• Know-how that is not generally known or not strictly necessary for carrying out the specific FOSTA research project or indispensable for a party to exploit the results. Know-how is indispensable for exploitation only if exploitation would not be possible without it.
• Possible or actually planned in-house research and development by the respective companies that builds on the presented results, as well as comparable in-house research.
• Any restriction of a company’s own research and development in an area outside the specific research project, as well as any restriction of a company’s own research and development in the area of the specific research project after its completion.

• In the research projects, care must be taken to ensure that they always comply with the IGF rules on pre-competitiveness and that, in particular, there is no de facto evaluation of suppliers or manufacturers. This is to be ensured, for example, by sufficiently anonymizing the research results.
• Moreover, within the scope of FOSTA e. V.’s activities, there must, of course, be no exchange of information or agreements on antitrust-prohibited topics such as prices, volumes, costs, suppliers, or customers.

Contact person:

Rainer Salomon · Tel.: +49 211 30297606

Dr. Gregor Nüsse · Tel.: +49 211 30297605

¹  Funding Guideline “Industrielle Gemeinschaftsforschung” of 21 December 2022 (Federal Gazette AT 29.12.2022 B1), sec. 4 para. 2, third bullet point.

Hogan Lovells International LLP, Düsseldorf, acted for FOSTA e. V. in the preparation of these guidelines.