COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEEMENTS
In order to verify whether an agreement has an adverse effect on competition, the competition authorities take into account the “actual context” within which competition is played out, which implies that “it is appropriate to take into account in particular the nature and quantity, limited or otherwise, of the products covered by the agreement, the position and importance of the grantor and the concessionaire on the market for the products concerned, the isolated nature of the disputed agreement or, alternatively, its position in a series of agreements, the severity of the clauses intended to protect the exclusive dealership or, alternatively, the opportunities allowed for other commercial competitors in the same products by way of parallel re-exportation and importation”. The competition authorities apply a “counterfactual test” and assess “whether an agreement is restrictive of competition within the actual context in which competition would occur in the absence of the agreement with its alleged restrictions”.
In addition, if the restrictive effects of an agreement are marginal on an individual scale, that agreement may, by network effect, contribute to the increasing rigidity of prices on the entire market. The assessment may also extend beyond a specific network to the overall anticompetitive effect produced by a series of similar agreements (cumulative effect).