If an agreement is reached between one of the persons mentioned above, it would be under the law, and at the time of the decision, they are reviewed according to the rule of reason1 on a case-by-case basis. In December 2010, the European Commission published updated guidelines for the application of Article 101 to horizontal cooperation agreements (guidelines). Unlike practices that are subject to strict prohibitions, such as cartels and the introduction of minimum resale prices, concerted practices are prohibited only if they significantly restrict competition in a market. The potential for agreements between competitors, namely Article 101 of the TFUE, is high and reflects the principle set out in the guidelines, namely that competing firms must define their competition strategy independently of each other. The legitimate forms of horizontal cooperation discussed in this quick guide serve as carefully controlled exceptions to this general rule. If the terms of these exemptions are not met, there is a high risk that cooperation may be contrary to Article 101 and may even be considered a form related to cartels. Any formal agreement between real or potential competitors, but which has an indirect impact on the way they compete, therefore requires careful legal scrutiny. If the research and development agreement provides only for a common research and development, the agreement must provide that the parties have access to the existing know-how of the other party (payment of access is allowed). However, in most other circumstances, the Commission recognizes that the issue of pre-research disclosure may be left to negotiations between the parties. Both parties should have equitable access to research and development results, in circumstances where the parties agree to limit their areas of valuation (i.e. specialize only in the use of certain areas of results). All joint exploitation must be limited to results protected by intellectual property rights or know-how, which are essential for the manufacture of contractual technologies. To reach an agreement or reach an agreement, you do not have to write anything.
In fact, such agreements are often not implemented in writing. Nothing needs to be expressed, a “nod and wink” is enough. 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).