Horizontal Agreements Notes

The potential effects of such agreements may be the loss of competition between the parties to the agreement. Competitors can also benefit from the reduction in competitive pressure resulting from the agreement and may therefore consider it cost-effective to increase their prices. Reducing these competitive constraints can lead to higher prices in the market in question. Factors such as whether the parties to the agreement have high market shares, whether they are close competitors, whether customers have limited opportunities to switch suppliers, whether competitors are not likely to increase supply in the event of price increases and whether one of the parties to the agreement is a significant competitive force , are relevant to the assessment of the competition of the agreement. The assessment of the restrictive agreements covered by Article 101, paragraph 3, takes place in the actual context in which they occur and on the basis of the facts that exist at a given time. The assessment is sensitive to substantial changes in the facts. The derogation from Article 101, paragraph 3, applies as long as the four conditions in Article 101, paragraph 3, are met and no longer apply when they are no longer the case. For the purposes of the application of Article 101, paragraph 3, in accordance with these principles, it is necessary to take into account the initial invested by one of the parties and the restrictions necessary to realize and recover an efficiency-saving investment. Article 101 cannot be applied without due consideration of these ex ante investments. Therefore, the risk to the parties and the flowing investments that must be made to implement the agreement may lead to the agreement falling outside Article 101, paragraph 1, or meet the conditions of Article 101, paragraph 3, for the period necessary for the recovery of the investment. In the event that the invention resulting from the investment would benefit from some form of exclusivity granted to the parties under the rules on the protection of intellectual property rights, it is likely that the period of repayment of such an investment will not exceed the exclusivity period set by those provisions. Vertical subcontracts are not covered by these guidelines.

They fall within the scope of the vertical restriction guidelines and may, under certain conditions, benefit from the category exemption regulation for vertical restrictions.