Common procurement agreements that do not restrict competition must be analysed in their legal and economic context, given their real and likely effects on competition. The analysis of the restrictive effects of competition resulting from a common purchase agreement must cover the negative effects on both the purchase and the selling market. While the Commission recognises the benefits of horizontal cooperation agreements, it must ensure that effective competition is maintained. Section 101 provides a legal framework for a balanced assessment that takes into account both the negative effects on competition and the pro-competitive effects. The term “competitors” used in these guidelines includes both real and potential competitors. Two companies are considered real competitors when operating in the same market in question. A company is considered a potential competitor to another company if, in the absence of an agreement, in the event of a minor but lasting increase in relative prices, it is likely to see the former realize, in a short period of time (6), the additional investments or other conversion costs necessary to enter the market in question in which it operates. This assessment must be based on realistic reasons, because the mere theoretical possibility of entering a market is not sufficient (see the Commission`s communication on the definition of the market in question within the meaning of EU competition law) (7) (hereafter the “communication on the definition of the market” (7). Analysis: if a) manufacturers have the freedom to manufacture other products that do not meet the new standard, b) participation in standardization is full and transparent and (c) the standardization agreement does not otherwise restrict competition, it is not likely to violate Article 101, paragraph 1. If the parties agree to manufacture only products that meet the new standard, the agreement would limit technological development, reduce innovation and prevent parties from selling different products, which would have restrictive effects on competition within the meaning of Article 101, paragraph 1. Analysis: Given that both companies` research and development efforts are aimed at an entirely new product, the markets considered must be taken into account for existing components and for the licensing of technologies. The combined market share of the parties in the OEM market (35%) particularly in the technology market (45%) It`s pretty high.
However, the parties will continue to produce and sell the components separately. In addition, there are several competing technologies that are regularly improved. In addition, automakers, which currently have no licenses for their technology, are also potential players in the technology market, limiting the parties` ability to raise prices profitably. To the extent that the joint venture has restrictive effects on competition within the meaning of Article 101, paragraph 1, it is likely that it would meet the criteria of Article 101, paragraph 3.