Supply Agreement Between Competitors
“Vertical” agreements between companies at different levels of the supply chain (. B, for example, between buyers and suppliers or between producers and intermediaries) are generally less sensitive to competition problems than horizontal agreements. As a general rule, maximum resale price agreements do not pose a competitive risk, as they often protect consumers from higher prices and therefore present a low risk. However, given the risks associated with resale price restrictions, each cartel and abuse of dominance consultant program should be carefully considered. The defined types of common production and specialization agreements are covered by the revised Category Exemption Specialization Agreement (SBE).6 In addition, the guidelines are guidelines. Specialization is when one party stops producing or reducing a particular product and buys it from the other (this can be done on a reciprocal basis if each producer withdraws from a market and buys the products from its competitor, or unilaterally). It is important to carefully review procurement agreements and verify that there are no rules that effectively raise “hidden” competition law issues. For example, illegal retail price retention cannot be done by providing for a specific clause on resale prices, but by pressuring retailers to discourage discounts by threatening or effectively eliminating discounts. IP agreements must also be carefully considered.
While some restrictions are necessary to protect intellectual property rights, some restrictions can pose competition law problems. When evaluating marketing agreements, most of the general issues mentioned in item 3 will be relevant. Other elements of the guidelines should be noted: in certain circumstances, there may be market power issues related to exclusive deliveries, common purchase agreements and the most favoured nation clauses (meaning that suppliers cannot charge other customers a lower price). The Class Exemption for Technology Transfer (TTBE)8 provides an automatic exemption under Section 101, paragraph 3, for licences between competitors. 9 If the parties` shares exceed 20%, the TTBE will not be applicable and an individual assessment is required to determine whether the licence would limit competition and could violate competition law. The Commission generally refers to these agreements as “marketing agreements”. This applies to the joint sale, where the parties agree on all commercial aspects related to the sale of the product, including the price. However, it also includes more limited forms of cooperation, such as distribution agreements.
B (for example. B, a party appoints its competitor for the distribution of its products in a given territory), after-sales service, advertising or logistics. Competition issues may arise in the “upstream” supply chain (for example. B with the origin of goods and services) as well as in the “downstream” supply chain (. B, for example, the sale of goods or services). Competition law recognizes that cooperation between competitors in the joint implementation and subsequent use of the R and D can promote technical and economic progress, especially when companies bring complementary capabilities. The exchange of information between competitors is a very broad subject, ranging from the disclosure of prices or expected quantities (very high risk) to the annual dissemination of historical industry market statistics (low risk).