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Antitrust Agreements Between Competitors

Opublikowano: Kwiecień 8th, 2021 by foto-klinika |

Other types of subcontracting between competitors (designated by the Commission as subcontractors for the extension of production. B, for example, custom manufacturing agreements) are not covered by the category exemption, but similar principles apply under the guidelines. The Commission`s contracting notice7 may also be important. In the absence of mergers, strategic alliances and similar transactions, there are many opportunities for cooperation between competitors under competition law. Article 101 of the Treaty on the Functioning of the European Union (TFUE) is, in accordance with the national legislation of EU Member States, the main provision of EU competition law in this context. Overall, it prohibits agreements that effectively restrict, distort or prevent competition by purpose or objective (Article 101, paragraph 1, of the EUTS). However, agreements demonstrating that they generate consumer-friendly benefits and predominate anti-competitive effects may be exempted as long as the applicable exemption conditions are met (Article 101, paragraph 3, of the EUTF). The European Commission has identified certain categories of horizontal agreements that can be automatically exempted if they are covered by the parameters set out in the various category exemption regulations described in this quick guide. In this context, it is important to ensure that the licence does not contain severe competition restrictions set out in the TTBE. The existence of such restrictions is extremely difficult to justify under Article 101, paragraph 3, and should nullify the entire licence and expose the parties to the risk of fines and actions for damages from third parties. Among the restrictions on an IPR licence between competitors under the TTBE, the Commission recognizes that joint procurement agreements can often promote competition by allowing smaller competitors to obtain purchasing savings similar to those of large competitors, which can lead to increased competition, for example in the form of lower prices and/or quality products or services. The SBE exempts all common production and specialization agreements (including related proprietary intellectual property and purchase and supply ancillary authorizations, as well as associated joint distribution): the category exemption for technology transfer (TTBE)8 provides an automatic exemption under Article 101, paragraph 3, for licensing between competitors.

9 If the parties` shares exceed 20%, the TTBE will not be applicable and an individual assessment is required to determine whether the licence would limit competition and could violate competition law. There are clear opportunities for legitimate and pro-competitive cooperation between competitors. However, caution should be exercised given the real risk of violation of Article 101 of the Treaty on the Functioning of the European Union between competitors and/or the qualification of an agreement. This quick guide summarizes the assessment of competition in cooperation agreements between competitors under EU competition law. In order to compete in modern markets, competitors sometimes have to cooperate. Competitive forces drive companies to cooperate in complex ways to achieve goals such as expanding to foreign markets, financing costly innovation efforts, and reducing production and other costs. Referring in particular to common production/specialization agreements that involve a common distribution, the guidelines specify that they can still be exempted, even above the 20% ceiling, provided that joint sales are a necessary part of the overall scheme: in other words, the parties would not have adhered to the common production agreement (the parties should also demonstrate that the agreement generates significant efficiency gains that are passed on to consumers).