Horizontal Agreement Competition Law

In order for the exchange of information to have restrictive effects on competition, the parties to the exchange must cover a sufficiently large share of the relevant market. Otherwise, competitors who do not participate in the exchange of information could limit the anti-competitive behaviour of the parties. For example, companies that are not linked to the information exchange system could jeopardise the external stability of a collusive result by pricing below the coordinated price level. Agreements using a standard as part of a broader restrictive agreement to exclude actual or potential competitors limit competition. For example, an agreement where a national producer association sets a standard and pressures third parties not to market products that do not comply with the standard or if the manufacturers of the established product enter into an agreement to exclude new technologies from an existing standard (108). Situation: The same facts as in Example 1, paragraph 252, apply with one major difference: to ensure the profitability of the project, the agreement could only have been implemented by three of the parties (instead of the four that actually participate in the cooperation). Efficiency gains generated by necessary restrictions must be passed on to consumers to an extent that outweighs the restrictive effects of competition of a standardisation agreement or standard conditions. An important part of the analysis of likely transfers to consumers is to know what procedures are used to ensure the protection of the interests of users of standards and final consumers. If standards facilitate technical interoperability and compatibility or competition between new products, services and existing processes, the standard can be considered beneficial for consumers. The likely effects of the exchange of information on competition need to be analysed on a case-by-case basis, as the results of the assessment depend on a combination of different factors specific to the case-by-case basis.

The assessment of the restrictive effects of competition compares the likely effects of the exchange of information with the competitive situation that would prevail without this specific exchange of information (60). For the exchange of information to have restrictive effects on competition within the meaning of Article 101(1), it must have significant negative effects on one (or more) parameters of competition law such as price, production, product quality, product diversity or innovation. . . .

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