For example, if the parties to a joint advertising agreement exchange price information, this may result in a collusive result with respect to the sale of the jointly promoted products. In any event, the exchange of such information as part of a joint publicity agreement goes beyond what would be necessary to implement this agreement. The likely anti-competitive effects of information exchange under marketing agreements depend on market characteristics and the data exchanged and should be assessed in light of Chapter 2 guidelines. To determine whether the parties to a production agreement have market power, the number and intensity of the links (for example. B, other cooperation agreements) between competitors in the market are relevant to the valuation. Article 101, paragraph 1, prohibits agreements with the purpose or effect of restricting competition. Where a restriction of competition has been demonstrated under Article 101, paragraph 1, Article 101, paragraph 3, can be relied upon as a defence. Regulation (EC) No. 1/2003 imposes the burden of proof on the company that invokes the usefulness of this provision. Four cumulative conditions must be met in order for cooperation agreements to be excluded: joint marketing generally involves the exchange of sensitive business information, particularly on marketing strategy and pricing. In most marketing agreements, a certain level of information exchange is required to implement the agreement.
It is therefore necessary to consider whether the exchange of information can lead to a collusive outcome with regard to the activities of the parties inside and outside the cooperation. All negative effects resulting from the exchange of information are not assessed separately, but taking into account the overall impact of the agreement. (26) For the purposes of these guidelines, the concept of “restricting competition” encompasses the prevention and falsification of competition. 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.