Standardization agreements that do not restrict the competition sought must be analysed in their legal and economic context, given their real and likely effects on competition. In the absence of market power (110), a standardization agreement is not likely to have restrictive effects on competition. Therefore, restrictive effects are highly unlikely in a situation where there is effective competition between a number of voluntary standards. An assessment based on the impact of standardization agreements Production agreements can promote competition if they involve efficiencies in the form of cost savings or better production technologies. Joint production saves companies costs that they would otherwise duplicate. They can also produce at a lower cost if cooperation allows them to increase production, when marginal costs decrease with production, i.e. through economies of scale. Joint production can also help companies improve product quality by combining complementary skills and know-how. Cooperation can also enable companies to increase the diversity of products they could not or would not otherwise afford. If joint production allows the parties to increase the number of different types of products, it can also save money by saving areas of application.
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 competition in the agreement. Another difference must be put in place between agreements in which the parties agree only through joint marketing and agreements where marketing is linked to another type of upstream cooperation, for example. B of common production or joint purchases. When analysing marketing agreements combining different phases of cooperation, it is necessary to define the centre of gravity of cooperation in accordance with paragraphs 13 and 14. The evaluation of the use or effectiveness restrictions in section 101, paragraph 1, is only one page of the analysis.
The other aspect reflected in Article 101, paragraph 3, is the assessment of the pro-competitive effects of restrictive agreements. The general direction for the application of Article 101, paragraph 3, is set out in the general guidelines. Where a restriction of competition within the meaning of Article 101, paragraph 1, has been demonstrated on a case-by-case basis, Article 101, paragraph 3, can be invoked as a defence. In accordance with Article 2 of Regulation (EC) 1/2003 of the Council of 16 December 2002 relating to the implementation of the competition rules under Articles 81 and 82 of the Treaty (35), the burden of proof under Article 101, paragraph 3, rests with the company that invokes the usefulness of this provision. Therefore, the actual arguments and evidence provided by the undertaking must allow the Commission to conclude that the agreement in question is sufficiently appropriate to produce or not pro-competitive effects. These guidelines define the principles for evaluating agreements between companies, mergers and concerted practices (collectively referred to as “agreements”) within the framework of horizontal cooperation under Article 101 of the Treaty on the Functioning of the European Union (1) (article 101). Cooperation is “horizontal” when an agreement is reached between real or potential competitors.