As a general rule, agreements that involve pricing, production limitation or distribution with customers limit competition. However, in the context of production agreements, this is not the case where: outsourcing research and development in captivity is a specific form of research and development cooperation. In such a scenario, research and development is often carried out by specialized companies, research institutes or academic institutions that do not participate in the exploitation of the results. Normally, these agreements are combined with a transfer of know-how and/or an exclusivity clause on possible outcomes which, in such a scenario, do not have restrictive effects on competition within the meaning of Article 101, paragraph 1, because of the complementary nature of the cooperating parties. These include research and development agreements, production agreements, sales contracts, marketing agreements, standardization agreements and information exchange. These guidelines apply to the most common types of horizontal cooperation agreements, regardless of the degree of integration they have implemented, with the exception of mergers within the meaning of Article 3 of Regulation (EC) No. 2009/2003. Regulation (EC) No. 139/2004 of the Council of 20 January 2004 on the control of mergers between companies (2) (hereafter the Merger Regulation) is, as would be the case, as would be the case. B for joint ventures that carry out all the functions of a self-sustaining economic entity (“full-service joint ventures”) (3). Restrictions that go beyond what is necessary to achieve efficiencies achieved through a marketing agreement do not meet the criteria set out in Article 101, paragraph 3. The question of indispensableity is particularly important for price-fixing or market allocation agreements, which can only be considered indispensable in exceptional circumstances. Pricing is one of the main competition issues arising from marketing agreements between competitors.
Agreements that are limited to joint selling are generally intended to coordinate the pricing policies of competing producers or suppliers. These agreements can not only eliminate tariff competition between the parties for alternative products, but also limit the total volume of products to be delivered by the parties under a contracting system. Such agreements should therefore limit the competition for which the purpose is sought. The form and scope of production agreements differ. They may predict that the production is carried out by a single party or by two or more parts. Companies may jointly produce subcontracts as part of a joint venture, i.e. a jointly controlled company that operates one or more production units, or through more flexible forms of production cooperation, such as Z.A., when one party (the “contractor”) entrusts the manufacture of welfare to another party (the “subcontractor”). These guidelines apply to all forms of common production agreements and horizontal subcontracts. Subject to certain conditions, joint production agreements and unilateral and reciprocal specialisation agreements may benefit from the category exemption regulation relating to specialisation. Where competitors agree to market their alternative products on a reciprocal basis (particularly when they do so in different geographic markets), it is possible, in some cases, that the agreements will result in or result in market silos between the parties or result in a collusive outcome.
The same applies to non-reciprocal agreements between competitors. Reciprocal agreements and non-reciprocal agreements between competitors must therefore first be assessed on the basis of the principles set out in this chapter. If this assessment concludes that cooperation between competitors in the distribution sector would in principle be acceptable, further consideration is needed to examine the vertical restrictions contained in these agreements.