1. First step: Are the horizontal agreement and the restrictions contained in it caught by the prohibition of Article 101(1) TFEU?
1.1 Are we dealing with a horizontal agreement involving at least two independent undertakings?
1.2 Agreements other than horizontal agreements involving at least two independent undertakings
1.3 Does the horizontal agreement have a sufficient effect on trade between Member States?
1.4 Does the horizontal agreement have the object or effect to restrict competition appreciably?
1.5 Are there any ways out?
2. Second step: Does the horizontal agreement benefit from a block exemption?
2.1 Structure of the Research and Development BER, the Specialisation BER and the Horizontal Guidelines
2.2 Scope of application of the Research and Development BER, the Specialisation BER and the Horizontal Guidelines
2.3 Relevant market
3. Third step: Does the horizontal agreement benefit from an individual exemption pursuant to Article 101(3) TFEU?
Article 1
Definitions
Article 2
Exemption
Article 3
Access to the fnal results
Article 4
Access to pre-existing know-how
Article 5
Joint exploitation
Article 6
Market share thresholds and duration of exemption
Article 7
Application of the market share thresholds
Article 8
Hardcore restrictions
Article 9
Excluded restrictions
Article 10
Withdrawal in individual cases by the Commission
Article 11
Withdrawal in individual cases by the competition authority of a Member State
Article 12
Transitional period
Article 13
Entry into force and application
Article 1
Definitions
Article 2
Exemption
Article 3
Market share threshold
Article 4
Application of the market share threshold
Article 5
Hardcore restrictions
Article 6
Withdrawal in individual cases by the Commission
Article 7
Withdrawal in individual cases by the competition authority of a Member State
Article 8
Transitional period
Article 9
Entry into force and application
1. INTRODUCTION
1.1. Purpose and structure of these Guidelines
1.2. Applicability of Article 101 of the Treaty to horizontal cooperation agreements
1.2.1 Introduction
1.2.2 Analytical framework
1.2.3 Assessment under Article 101(1)
1.2.3.1 Advantages of horizontal cooperation
1.2.3.2 Concerns arising from horizontal cooperation
1.2.4 Restrictions of competition by object
1.2.5 Restrictive effects on competition
1.2.6 Ancillary restraints
1.2.7 Assessment under Article 101(3)
1.2.8 Horizontal cooperation agreements that generally fall outside the scope of Article 101(1)
1.3 Relationship to other guidance, legislation and case-law
2. RESEARCH AND DEVELOPMENT AGREEMENTS
2.1. Introduction
2.2. The R&D Block Exemption Regulation (‘R&D BER’)
2.2.1 Definition of research and development in the R&D BER
2.2.2 Definition of R&D agreements in the R&D BER
2.2.2.1 Distinction between ‘joint R&D’ and ‘paid-for R&D’ and the concept of ‘specialisation in the context of R&D’
2.2.2.2 ‘Joint exploitation’ of the R&D results and ‘specialisation in the context of joint exploitation
2.2.2.3 Assignment and licensing of intellectual property rights
2.2.3 Conditions for exemption under the R&D BER
2.2.3.1 Access to the fnal results
2.2.3.2 Access to pre-existing know-how
2.2.3.3 Conditions relating to joint exploitation
2.2.3.4 Market share threshold and duration of the exemption
2.2.4 Hardcore and excluded restrictions
2.2.4.1 Hardcore restrictions
2.2.4.2 Excluded restrictions
2.2.5 Relevant time for assessing compliance with the conditions of the R&D BER
2.2.6 Withdrawal of the benefit of the block exemption
2.2.7 Transitional period
2.3 Individual assessment of R&D agreements under Article 101(1)
2.3.1 Relevant markets
2.3.1.1 Product markets
2.3.1.2 Technology markets
2.3.1.3 Early innovation efforts
2.3.2 Main competition concerns
2.3.3 R&D agreements that generally do not restrict competition
2.3.4 Restrictions of competition by object
2.3.5 Restrictive effects on competition
2.3.5.1 Market power
2.3.5.2 R&D relating to existing products or technologies
2.3.5.3 Innovation relating to entirely new products and early innovation efforts
2.3.5.4 Exchanges of information
2.4 Individual assessment of R&D agreements under Article 101(3)
2.4.1 Efficiency gains
2.4.2 Indispensability
2.4.3 Pass-on to consumers
2.4.4 No elimination of competition
2.5 Relevant time for the assessment
2.6 Examples
3. PRODUCTION AGREEMENTS
3.1. Introduction
3.2. Relevant markets
3.3 The Specialisation BER
3.3.1 Production agreements covered by the Specialisation BER
3.3.2 Other provisions covered by the Specialisation BER
3.3.3 Distribution under the Specialisation BER
3.3.4 Services under the Specialisation BER
3.3.5 Market share threshold and duration of the exemption
3.3.5.1 Market share threshold
3.3.5.2 Calculation of market shares
3.3.5.3 Duration of the exemption
3.3.6 Hardcore restrictions in the Specialisation BER
3.3.6.1 Hardcore restrictions
3.3.6.2 Exceptions
3.3.7 Withdrawal of the benefit of the Specialisation BER
3.3.8 Transitional period
3.4. Individual assessment of production agreements under Article 101(1)
3.4.1 Main competition concerns
3.4.2 Restrictions of competition by object
3.4.3 Restrictive effects on competition
3.4.3.1 Production agreements that are unlikely to lead to restrictive effects
3.4.3.2 Market power
3.4.3.3 Direct limitation of competition between the parties
3.4.3.4 Collusive outcome and anti-competitive foreclosure
3.5 Individual assessment of production agreements under Article 101(3)
3.5.1 Efficiency gains
3.5.2 Indispensability
3.5.3 Pass-on to consumers
3.5.4 No elimination of competition
3.6 Mobile telecommunications infrastructure sharing agreements
3.7 Examples
4. PURCHASING AGREEMENTS
4.1. Introduction
4.2. Assessment under Article 101(1)
4.2.1. Main competition concerns
4.2.2. Restrictions of competition by object
4.2.3. Restrictive effects on competition
4.2.3.1 Relevant markets
4.2.3.2 Market power
4.2.3.3 Collusive outcome
4.3. Assessment under Article 101(3)
4.3.1 Efficiency gains
4.3.2 Indispensability
4.3.3 Pass-on to consumers
4.3.4 No elimination of competition
4.4. Examples
5. COMMERCIALISATION AGREEMENTS
5.1. Introduction
5.2. Assessment under Article 101(1)
5.2.1 Main competition concerns
5.2.2 Restrictions of competition by object
5.2.3 Restrictive effects on competition
5.2.3.1 Collusive outcome
5.2.3.2 Cooperation that generally does not raise concerns
5.3. Assessment under Article 101(3)
5.3.1 Efficiency gains
5.3.2 Indispensability
5.3.3 Pass-on to consumers
5.3.4 No elimination of competition
5.4 Bidding consortia
5.5 Examples
6. INFORMATION EXCHANGE
6.1. Introduction
6.2. Assessment under Article 101(1)
6.2.1. Introduction
6.2.2. Main competition concerns arising from the exchange of commercially sensitive information
6.2.2.1 Collusive outcome
6.2.2.2 Anti-competitive foreclosure
6.2.3. The nature of the information exchanged
6.2.3.1 Commercially sensitive information
6.2.3.2 Aggregated versus individualised information
6.2.3.3 The age of the information
6.2.4. The characteristics of the exchange of commercially sensitive information
6.2.4.1 Unilateral disclosure
6.2.4.2 Indirect information exchange
6.2.4.3 Frequency of the exchange of commercially sensitive information
6.2.4.4 Measures to reduce the risk of competition law infringements
6.2.5 Market characteristics
6.2.6 Restriction of competition by object
6.2.7 Restriction of competition by effect
6.3 Assessment under Article 101(3)
6.3.1 Efficiency gains
6.3.2 Indispensability
6.3.3 Pass-on to consumers
6.3.4 No elimination of competition
6.4 Examples, self-assessment steps and table giving guidance on liability in different settings
7. STANDARDISATION AGREEMENTS
7.1 Introduction
7.2 Relevant markets
7.3 Assessment under Article 101(1)
7.3.1 Main competition concerns
7.3.2 Restrictions of competition by object
7.3.3 Restrictive effects on competition
7.3.3.1 Agreements which generally do not restrict competition
7.3.3.2 Effects-based assessment of standardisation agreements
7.4 Assessment under Article 101(3)
7.4.1 Efficiency gains
7.4.2 Indispensability
7.4.3 Pass-on to consumers
7.4.4 No elimination of competition
7.5 Examples
8. STANDARD TERMS
8.1 Definitions
8.2 Relevant markets
8.3 Assessment under Article 101(1)
8.3.1. Main competition concerns
8.3.2. Restriction of competition by object
8.3.3. Restrictive effects on competition
8.4 Assessment under Article 101(3)
8.4.1 Efficiencies
8.4.2 Indispensability
8.4.3 Pass-on to consumers
8.4.4 No elimination of competition
8.5 Examples
9. SUSTAINABILITY AGREEMENTS
9.1 Introduction
9.2 Sustainability agreements that are unlikely to raise competition concerns
9.3 Assessment of sustainability agreements under Article 101(1)
9.3.1 General principles
9.3.2 Sustainability standardisation agreements
9.3.2.1 Definition and characteristics
9.3.2.2 Main competition concerns
9.3.2.3 Restriction of competition by object
9.3.2.4 Restrictive effects on competition
9.4 Assessment of sustainability agreements under Article 101(3)
9.4.1 Efficiency gains
9.4.2 Indispensability
9.4.3 Pass-on to consumers
9.4.3.1 Individual use value benefits
9.4.3.2 Individual non-use value benefits
9.4.3.3 Collective benefits
9.4.3.4 Any or all types of benefts
9.4.4 No elimination of competition
9.5 Involvement of public authorities
9.6 Examples
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