The outsourcing of previously linked R&D is a specific form of R&D cooperation. In such a scenario, R&D is often conducted by specialized companies, research institutes or academic institutions that are not involved in exploiting the results. As a general rule, such agreements are linked to a transfer of know-how and/or an exclusive supply clause on possible results which, due to the complementary nature of the cooperating parties, do not have a restrictive effect on competition within the meaning of Article 101(1) in such a scenario. Whether a standardisation agreement allows the parties to eliminate competition depends on the different sources of competition in the market, the extent of the competitive pressure they impose on the parties and the impact of the agreement on that competitive pressure. While market shares are relevant for this analysis, the extent of the remaining actual sources of competition cannot be assessed solely on the basis of market share, except where a standard becomes a de facto industry standard (131). In the latter case, competition may occur by circumventing competition if actual access to the standard is spoiled by third parties. The standard concepts used by a majority of the industry could create a de facto industry standard and thus raise the same concerns. However, if the standard or standard conditions only apply to a limited part of the product or service, it is unlikely that the competition will be down. The horizontal agreement is a cooperation agreement between two or more competing undertakings operating at the same market level. This usually serves to develop a healthy relationship between competitors. The essential clauses of the agreement may contain guidelines on pricing, production and distribution.
The agreement may also address the exchange of product and market information. Horizontal agreements may lead to infringements of anti-cartel rules, as such agreements may contain clauses limiting competition. Analysis: This standardisation agreement is likely to have restrictive effects on competition within the meaning of Article 101(1) and is unlikely to meet the criteria set out in Article 101(3). The members of the standardisation body have established the standard without objective justification so that their competitors` products based on other technological solutions cannot meet it, even though they have equivalent performance. Therefore, this standard, which has not been established in a non-discriminatory manner, will reduce or prevent innovation and product diversity. The way the standard is formulated is unlikely to result in greater efficiency gains than a neutral method. In addition, R &D cooperation between non-competitors generally does not have restrictive effects on competition (87). The competitive relationship between the parties must be analysed in the context of the relevant existing markets and/or innovation. If, due to objective factors, the parties are not able to autonomously carry out the necessary developments in R &D, for example. B due to the limited technical possibilities of the parties, the R&D agreement generally does not have a restrictive effect on competition. This may apply, for example, to companies that bring together complementary skills, technologies and other resources.
The issue of potential competition must be assessed on a realistic basis….