The Horizontal Agreements

Horizontal agreements are restrictive agreements between competitors operating at the same level of the production and distribution chain. Horizontal agreements that, directly or indirectly, result in or are likely to have the effect of preventing, distorting or restricting competition are in themselves violations. Section 4 of the Competition Protection Act 4054 (the “Competition Act”) prohibits them directly. In the case of standardization agreements with different types of disclosure models from previous years in the field of intellectual property by those described in point 286, it would be appropriate to check on a case-by-case basis whether the disclosure model in question (example. B a disclosure model that does not require disclosure from previous years, but only encourages) effective access to the standard. In other words, it is appropriate to consider whether, in a specific context, an informed choice between the technologies and intellectual property principles associated with them is not prevented in practice by the disclosure model of previous years. The assessment of the restrictive agreements covered by Article 101, paragraph 3, takes place in the actual context in which they occur and on the basis of the facts that exist at a given time. The assessment is sensitive to substantial changes in the facts. The derogation from Article 101, paragraph 3, applies as long as the four conditions in Article 101, paragraph 3, are met and no longer apply when they are no longer the case. For the purposes of the application of Article 101, paragraph 3, in accordance with these principles, it is necessary to take into account the initial invested by one of the parties and the restrictions necessary to realize and recover an efficiency-saving investment. Article 101 cannot be applied without due consideration of these ex ante investments. Therefore, the risk to the parties and the flowing investments that must be made to implement the agreement may lead to the agreement falling outside Article 101, paragraph 1, or meet the conditions of Article 101, paragraph 3, for the period necessary for the recovery of the investment.

In the event that the invention resulting from the investment would benefit from some form of exclusivity granted to the parties under the rules on the protection of intellectual property rights, it is likely that the period of repayment of such an investment will not exceed the exclusivity period set by those provisions. Where competitors agree to market their alternative products on a reciprocal basis (particularly when they do so in different geographic markets), it is possible, in some cases, that the agreements will result in or result in market silos between the parties or result in a collusive outcome. The same applies to non-reciprocal agreements between competitors. Reciprocal agreements and non-reciprocal agreements between competitors must therefore first be assessed on the basis of the principles set out in this chapter. If this assessment concludes that cooperation between competitors in the distribution sector would in principle be acceptable, further consideration is needed to examine the vertical restrictions contained in these agreements.

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