Horizontal Agreement Guidelines

Analysis: Although fat levels are recommendations and therefore optional recommendations, recommended fat levels are likely to be implemented by all producers of processed foods in the Member States, due to the wide publicity resulting from the national advertising campaign. It is therefore likely that a maximum fat content in processed foods is de facto highest. Consumer choice in product markets may therefore be limited. However, the parties will continue to be able to compete with a number of other product characteristics, such as price, product size, quality, taste, other nutritional and salinity values, ingredient balance and brand. In addition, competition for the fat content of the product supply may intensify when the parties try to offer products with the lowest values. It is therefore unlikely that the agreement will have restrictive effects on competition within the meaning of Article 101, paragraph 1. Analysis: The product will probably belong to a new market in question. The parties provide complementary resources and skills to the cooperation and the likelihood of the product being put on the market increases considerably. However, the fact that Company B is committed to the new technology of Company A could prompt the two competing research centres to abandon their projects, as it may be difficult to obtain additional financing once they have lost the most likely potential customer for their technology. In such a situation, potential competitors could not question The monopoly position of Company B in the future.

The lock-in effect of the agreement could then be seen as a restrictive effect on competition within the meaning of Article 101, paragraph 1. To benefit from Article 101, paragraph 3, the parties would have to demonstrate that the exclusivity granted would be essential to bring the new technology to market. Finally, marketing agreements can also lead to the exchange of strategic information on aspects within or outside the scope of cooperation or to a collusiveness of costs, particularly with regard to agreements that do not include price fixing, which can lead to a collusive outcome. There are different types of subcontracts.