COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
Agreements on commercial terms between competitors do not carry the same restrictive effects on competition as price-fixing or market-sharing agreements and it is therefore not always easy to define the limits beyond which this type of behavior falls under the prohibition of anticompetitive agreements. The restriction may even be indispensable. For example, an agreement between banks that solely concerns the opening hours for certain banking services does not produce a sufficiently appreciable effect on the market to be caught by the prohibition. This is also the case for the joint and uniform setting by various financial institutions of commissions and value dates insofar as it makes centralized clearing possible as without it the cost of operating services would be considerably increased. On the other hand, a restrictive agreement will be prohibited where the joint fixing of commercial terms leads to a serious distortion of competition, particularly when it limits the quantity of goods or services available on the market.
General terms and conditions fall within the scope of application of the Guidelines on Horizontal Cooperation Agreements and are exempted where they lay down standard terms and conditions of sale or purchase of goods or services between competitors and consumers for substitute products. The Commission cites banking and insurance as an example of sectors where these type of terms and conditions exist. However, general terms and conditions drawn up by an undertaking for the purpose of regulating its relations with its suppliers are expressly excluded.
