Guidelines On The Applicability Of Article 101 Of The Tfeu To Horizontal Co-Operation Agreements

Standardisation agreements generally have a considerable positive economic impact (102), for example by promoting economic penetration of the internal market and encouraging the development of new and improved products or markets and improving supply conditions. As a result, standards generally increase competition and reduce production and distribution costs, which benefits economies as a whole. Standards can maintain and improve quality, provide information and ensure interoperability and compatibility (which increases consumer value). Although these guidelines contain certain references to cartels, they are not intended to indicate what a cartel is or is not within the meaning of the Commission`s decision-making practice and the case-law of the Court of Justice of the European Union. (26) For the purposes of these Guidelines, the term `restriction of competition` covers the prevention and distortion of competition. The assessment of the impact of a standard fixing agreement should take into account the market shares of the goods or services based on the standard. It may not always be possible to assess at an early stage whether, in practice, the standard is adopted by a large part of the industry or whether it is only a standard used by a marginal part of the industry concerned. In many cases, the relevant market shares of the companies involved in the development of the standard could be used as a proxy to estimate the likely market share of the standard (given that, in most cases, companies involved in the definition of the standard would benefit from implementing the standard) (123). However, since the effectiveness of standardisation agreements is often proportional to the share of the industry involved in the definition and/or application of the standard, the high market shares held by the parties in the market(s) concerned by the standard do not necessarily lead to the conclusion that the standard is expected to have restrictive effects on competition. The exchange of information takes place in different contexts. There are agreements, decisions of associations of undertakings or concerted practices which exchange information whose main economic function is the exchange of information. In addition, the exchange of information may be part of another type of horizontal cooperation agreement (e.g. B the parties to a production agreement share certain cost information).

The evaluation of the latter type of exchange of information should be carried out as part of the evaluation of the horizontal cooperation agreement itself. Beyond mergers, strategic alliances and similar transactions, there are many ways for competitors to cooperate under competition law. Article 101 of the Treaty on the Functioning of the European Union (TFEU) is the EU`s main competition law provision in this context, with its correspondence under the national law of EU Member States. Overall, it prohibits agreements that accuse, accuse or distort competition (Article 101(1) TFEU).

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