Article 101 Tfeu Agreements
(54) With respect to silos that could lead to vertical agreements, see points 100 and following guidelines on vertical restrictions. These guidelines define the principles for evaluating agreements between companies, mergers and concerted practices (collectively referred to as “agreements”) within the framework of horizontal cooperation under Article 101 of the Treaty on the Functioning of the European Union (1) (article 101). Cooperation is “horizontal” when an agreement is reached between real or potential competitors. In addition, these guidelines also cover horizontal cooperation agreements between non-competitors. B, for example, between two companies that operate in the same product markets but in different geographic markets, without being potential competitors. Vertical subcontracts are not covered by these guidelines. They fall within the scope of the vertical restriction guidelines and may, under certain conditions, benefit from the category exemption regulation for vertical restrictions. In addition, they may be covered by the Commission`s communication of 18 December 1978 on the assessment of certain subcontracts with respect to Article 85, paragraph 1 of the EEC Treaty (91) (hereafter referred to as “subcontracting”). The assessment of the restrictive agreements covered by Article 101, paragraph 3, takes place in the actual context in which they occur and on the basis of the facts that exist at a given time. The assessment is sensitive to substantial changes in the facts. The derogation from Article 101, paragraph 3, applies as long as the four conditions in Article 101, paragraph 3, are met and no longer apply when they are no longer the case. For the purposes of the application of Article 101, paragraph 3, in accordance with these principles, it is necessary to take into account the initial invested by one of the parties and the restrictions necessary to realize and recover an efficiency-saving investment. Article 101 cannot be applied without due consideration of these ex ante investments.
Therefore, the risk to the parties and the flowing investments that must be made to implement the agreement may lead to the agreement falling outside Article 101, paragraph 1, or meet the conditions of Article 101, paragraph 3, for the period necessary for the recovery of the investment. In the event that the invention resulting from the investment would benefit from some form of exclusivity granted to the parties under the rules on the protection of intellectual property rights, it is likely that the period of repayment of such an investment will not exceed the exclusivity period set by those provisions.