Chapter 2 - Horizontal Cooperation Agreements

Abstract

This Paper examines the application of article 101 of the Treaty on the Functioning of the European Union (‘TFEU’) to multiple forms of cooperation between undertakings (covering, as such, agreements between undertakings, decisions by associations of undertakings and concerted practices, that will be here comprehensively referred to as ‘agreements’). More specifically, the Paper deals with horizontal co-operation between undertakings, that may be characterized, as put forward in the recent 2010 ‘Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements’ (approved in December 2010 and published in 2011, hereinafter the ‘Horizontal Guidelines’), as cooperation involving agreements or understandings ‘between actual or potential competitors’ (this type of competitive link conferring to those forms of cooperation its ‘horizontal nature’). This area of EU competition law covers, in particular, the establishment and functioning of joint ventures between actual or potential competitors (meaning partial function joint ventures which do not qualify as concentrations and are not accordingly submitted, as such, to the concentration control regime on the basis of Council Regulation N.º 139/2004 on the control of concentrations between undertakings). It also covers other looser forms of cooperation between actual or potential competitors which do not involve the organization level and functional structures typical of joint ventures, that are referred and widely discussed throughout this Paper as other horizontal cooperation agreements.

Keywords: Horizontal cooperation; joint ventures; agreements; object restrictive of competition; effects restrictive of competition