COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
Agreements between competitors for the joint organization of the sale, distribution or promotion of their products can take several forms. They may be in the form of grouped sales, leading to the joint determination of all the commercial aspects of the sale of the product, including price, or can be more limited, with agreements relating to one specific marketing function, such as distribution, after-sales services or advertising. According to the Guidelines on the applicability of Article 101 TFEU to horizontal cooperation agreements, reciprocal agreements and non-reciprocal agreements between competitors thus have first to be assessed according to the principles relative to horizontal agreements. Where the cooperation between competitors in the area of distribution is authorized, a further assessment will be necessary to examine the vertical restraints included in such agreements. The guidelines also distinguish between joint marketing agreements and those where commercialization is linked to other forms of cooperation, i.e. joint production and in that case the assessment is based on the latter aspect. Joint commercialization agreements are only subject to the provisions of Article 101(1) TFEU if the combined market share of the parties exceeds 15%. The Commission takes into account in its assessment the degree of market concentration and market share held.
Where joint marketing is objectively necessary in order for the parties to be able to penetrate a market that they would not have been able to penetrate individually, Article 101(1) does not apply insofar the undertakings are not potential competitors as far as the specific tender is concerned. On the other hand marketing agreements are likely to fall within the scope of the prohibition on restrictive agreements if their main object or effect is to coordinate the pricing policies of competitors, to promote exchanges of sensitive information or to share markets or clientele.
