Market power is a matter of degree. The level of market power necessary to determine an infringement pursuant to Article 101(1) in the case of agreements which effectively restrict competition shall be lower than the level of market power necessary to determine dominance pursuant to Article 102 where a significant level of market power is required. In some cases, if competitors agree to market their substitutes on the basis of reciprocity (in particular when they do so in different geographic markets), it is possible, in some cases, that the agreements may accuse or cause a partitioning of markets between the parties or lead to a result of collusion. The same applies to non-reciprocal agreements between competitors. Mutual agreements and not agreements between competitors should therefore be assessed as a first step in accordance with the principles set out in this Chapter. If that assessment concludes that cooperation between competitors in the distribution sector would in principle be acceptable, further examination is necessary to examine the vertical restraints contained in those agreements. This second stage of the assessment should be based on the principles set out in the Guidelines on Vertical Restraints. Some horizontal cooperation agreements, such as. B production and standardization agreements can also create anti-competitive lock-in problems. Secondly, marketing agreements can also facilitate the limitation of production, since the parties can decide on the quantity of products to be put on the market and thus limit supply. Effectiveness: the extent to which the current framework has proved effective in determining horizontal cooperation agreements which are not reasonably certain to fulfil the conditions set out in Article 101(3) of the Treaty. If an agreement is not subject to a block exemption, this does not necessarily mean that it is illegal.
The agreement can continue to apply an « individual exception » under Article 101(3) TEU (« TFEU »), which provides for a four-point test (a summary is available here). Whether the test is run when challenged in court or by a regulatory authority is a matter of review by the company and its advisers….