Strategic alliances as restrictive agreements Sample Clauses

Strategic alliances as restrictive agreements. If full-functionality is missing from a joint venture, or the transaction does not have Union dimension, then Article 101 TFEU may still have a role in their assessment. In the case of strategic alliances, the existence of an agreement between parties can always be presumed since they are established on a contractual basis. International strategic alliances will also usually satisfy the requirement of having an effect on 68 COM (2001) 745 final, Brussels, 11/12/2001. 69 ibid para 101. 70 ibid para 113. 71 KLM/Alitalia (Case COMP/JV.19) [2000] OJ C96/5. 72 See Commission consolidated jurisdictional notice under Council Regulation (EC) 139/2004 on the control of concentrations between undertakings [2008] OJ C95/1, paras 91-109. trade between Member States. Consequently, the most important issue would be whether the agreement has as its object or effect the restriction of competition. Should a strategic alliance restrict competition within the meaning of Article 101(1) TFEU, the opportunity would remain to argue that it creates efficiencies within the meaning of Article 101(3) TFEU, which would outweigh the restrictive effects.73 In the following, only a few general thoughts on strategic alliances and EU competition law are emphasised. The horizontal guidelines state that horizontal co- operation agreements can limit competition in several ways.74 The agreement may be exclusive and limit the potential for the partners to compete against each other, or for third parties to do the same. It can also reduce the independence of decision-making, through the contribution of assets or through the affection of financial interests. A horizontal agreement may also increase the likelihood of coordination.75 Complementary alliances bear similarities to commercialisation agreements and it is very possible that they can escape the application of Article 101 TFEU. Since the parties contribute different assets or skills to take advantage of the each other’s capabilities, the main question from a competition law point of view is whether the strategic alliance is objectively necessary to allow one party to enter the market in question.76 When alliance formation is led by the desire to access otherwise impenetrable markets, the competitive effect is positive. On the other hand, the assessment shall be negative when the strategic alliance serves as nothing more than a disguise for a collusive practice.77
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