Referring in particular to common production/specialization agreements that involve a common distribution, the guidelines specify that they can still be exempted, even above the 20% ceiling, provided that joint sales are a necessary part of the overall scheme: in other words, the parties would not have adhered to the common production agreement (the parties should also demonstrate that the agreement generates significant efficiency gains that are passed on to consumers). The Commission also notes that production agreements with marketing functions, such as joint sales/marketing, present a higher risk of restrictive effects, but that these agreements are generally less likely to restrict competition than marketing and marketing agreements. Irrespective of this risk, the Commission has established a relatively clear framework in which agreements can be concluded between competitors involving joint production, joint purchase or sale/marketing, or cooperation with respect to R and D or RPR licences. These agreements are increasingly being used to provide cost-effective alternatives to mergers and/or to create other effective means to achieve business objectives through cooperation, and can be designed to minimize any risk of relevant competition from the outset. What is a common sales contract? Essentially, it is an agreement between competitors or competitors to purchase (or not buy) the product, input or equipment of a common supplier at specified costs, as agreed by competitors. Legitimate joint sales contracts are sometimes referred to as “sales agreements” or “purchase cooperation.” It is generally accepted that joint sales contracts can promote competition. They can, for example, allow participants to centralize sorting, combine storage or distribution functions more efficiently, or achieve other efficiencies. In the absence of mergers, strategic alliances and similar transactions, there are many opportunities for cooperation between competitors under competition law. Article 101 of the Treaty on the Functioning of the European Union (TFUE) is, in accordance with the national legislation of EU Member States, the main provision of EU competition law in this context. Overall, it prohibits agreements that effectively restrict, distort or prevent competition by purpose or objective (Article 101, paragraph 1, of the EUTS).
avril 10, 2021 In