Similarly, the coexistence of costs increases the anti-competitive risks of a horizontal subcontracting agreement where the contribution concerned by the subcontractor`s contractor represents a large part of the variable costs of the final product with which the parties compete. If a horizontal cooperation agreement in no way restricts competition, it is necessary to examine whether it has appreciably restrictive effects on competition. Actual and potential effects must be taken into account. In other words, the agreement must at least be able to have anti-competitive effects. Standardisation agreements generally have a significant positive economic impact (102), for example by promoting economic penetration of the internal market and promoting the development of new and improved products or markets and the improvement of supply conditions. Standards therefore generally increase competition and reduce production and distribution costs, which benefits economies as a whole. Standards can maintain and improve quality, provide information and ensure interoperability and compatibility (thus increasing value for consumers). The parties only need to operate at different levels of the chain for the purposes of the specific agreement, i.e. they could normally be competitors. However, if they act at different levels than the agreement in question (e.g. B a producer who agrees to supply the goods produced by another producer), this is considered a vertical agreement. The assessment of the restrictive agreements referred to in Article 101(3) shall be carried out in the factual context in which they occur and on the basis of the facts existing at a given time.
The evaluation is sensitive to significant changes in the facts. The derogation provided for in Article 101(3) shall apply as long as the four conditions set out in Article 101(3) are fulfilled and shall cease to apply when this is no longer the case. When applying Article 101(3), in accordance with those principles, account shall be taken of the initial sunken investments made by one of the Parties and of the time and restrictions necessary to make and recover an investment improving efficiency. Article 101 may not be applied without due regard to such ex ante investments. The risk to which the parties are exposed and the sunken investments that must be made in order to implement the agreement may therefore result in the agreement not falling within the scope of Article 101(1) or not fulfilling the conditions of Article 101(3) for the period necessary for the eminage of the investment. If the invention resulting from the investment receives any form of exclusivity granted to the parties under specific rules for the protection of intellectual property rights, it is generally unlikely that the repayment period of such an investment will exceed the exclusivity period established under those rules. Agreements using general terms and conditions in the context of a broader restrictive agreement to exclude actual or potential competitors also restrict competition. For example, if a professional association does not allow a new entrant to access its general terms and conditions, the use of which is essential for market entry […].
