11. September 2021

Article 101 Horizontal Agreements

Filed under: Allgemein — @ 17:06

Standardisation agreements are described by the Commission in the Guidelines as agreements `primarily aimed at defining technical or qualitative requirements which current or future products, production processes, services or methods may meet`. In other words, they are common industry standards developed and agreed by standardisation bodies, associations or simply agreements between independent undertakings, which establish common requirements for services or products where compatibility and interoperability with other products and systems are essential or where minimum quality marks are required. In some cases, public authorities encourage companies to conclude horizontal cooperation agreements in order to achieve a public policy objective through self-regulation. However, undertakings remain subject to Article 101 where a national law merely encourages or facilitates them to engage in autonomous anti-competitive behaviour (22). In other words, the fact that the authorities encourage a horizontal cooperation agreement does not mean that it is authorised by Article 101 (23). Article 101 applies only where national laws engage in anti-competitive behaviour on the part of undertakings or where undertakings create a legal framework which precludes any room for manoeuvre for competition activities (24). In that case, the restriction of competition is not due, as implicitly required by Article 101, to the autonomous conduct of the companies and they are protected against all the consequences of an infringement of that Article (25). Each case should be assessed on the basis of its own facts on the basis of the general principles set out in these guidelines. Marketing agreements between competitors may have restrictive effects on competition only if the parties have a certain degree of market power. In most cases, it is unlikely that there will be market power if the parties to the agreement together hold a market share not exceeding 15%. In any event, if the parties` combined market share does not exceed 15%, it is likely that the conditions set out in Article 101(3) are fulfilled. These are horizontal agreements (e.g. B between distributors) and vertical (e.g.

B between retailers and suppliers) which effectively prohibit the operation of cartels within the EU. Article 101 has been interpreted very broadly to encompass both informal agreements (gentlemen`s agreements) and concerted practices in which firms tend to simultaneously raise or lower prices without having physically agreed to do so. However, a random increase in prices does not in itself prove a concerted approach and it is also necessary to demonstrate that the parties were aware that their conduct might affect the normal functioning of competition within the common market. The latter subjective requirement of knowledge is in principle not necessary for agreements. As far as agreements are concerned, the mere anti-competitive effect is sufficient to render it illegal even if the parties did not know or did not intend to achieve such an effect. Similarly, it is more likely that the exchange of information, which is part of horizontal cooperation agreements, fulfils the conditions set out in Article 101(3) if it does not go beyond what is essential for the implementation of the economic objective of the agreement (e.g. B the sharing of technologies necessary for an R&D agreement or cost data under a production agreement). In order to assess the competitive relationship between the parties, it is necessary to define the relevant product and space market(s) directly concerned by the cooperation (i.e. the market or markets to which the products covered by the agreement belong).

Since a marketing agreement on one market may also influence the competitive behaviour of the parties in a neighbouring market closely related to the market directly concerned by the cooperation, it is also appropriate to define such a neighbouring market. . . .

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