COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENT
Joint purchasing agreements can be concluded between undertakings competing on the product purchasing markets. Where the joint purchasing constitutes the vehicle for a prohibited disguised cartel, such as a price or market-sharing agreement, the application of Article 101(1) TFEU is unambiguous.
Cooperation between competing buyers can significantly reduce competition by the creation of a buyer power. According to the Commission, the existence of such market power is excluded when the parties hold a combined share of less than 15% both on the buying and the selling markets.
However, some joint purchasing agreements with an anticompetitive object may be justified under Article 101(3) TFEU because of the efficiencies they produce and the many advantages they confer on consumers.
Where the joint purchasing is based on both horizontal and vertical agreements, a two-step analysis is carried out; firstly the horizontal agreement is assessed and, if that agreement can be authorized, the vertical agreement is then examined in the light of the specific rules for vertical agreements.
