Horizontal Agreements European Commission

Horizontal Agreements European Commission

These Guidelines apply to the most common types of horizontal cooperation agreements, irrespecty of their degree of integration, with the exception of projects constituting a concentration within the meaning of Article 3 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations of undertakings (2) (`the Merger Regulation`) – for example, with joint ventures, which permanently perform all the functions of an autonomous economic entity (`full-function joint venture`) (3). Given the potentially high number of species and combinations of horizontal cooperation and the market conditions in which they operate, it is difficult to provide specific responses to each possible scenario. However, these guidelines will help undertakings to assess the compatibility of an individual cooperation agreement with Article 101. However, these criteria do not constitute a “checklist” that can be applied mechanically. Each case must be assessed on the basis of its own facts, which may require a flexible application of these guidelines. Many R&D agreements will fall somewhere between the two situations described in paragraphs 137 and 138. They can therefore have an impact on both innovation and existing markets. Therefore, both the existing market and the impact on innovation may be important for the assessment of the parties` combined positions, concentration rates, number of players or innovators and entry conditions. In some cases, there may be restrictive effects on competition in the form of higher prices or reduced conditions of production, product quality, product diversity or innovation in existing markets, and in the form of negative effects on innovation by slowing development. For example, if significant competitors collaborate in an existing technology market to develop a new technology that could one day replace existing products, such cooperation may slow down the development of the new technology if the parties have market power in the existing market and also a strong position in research and development.

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