EU competition law and joint commercialisation agreements
EU competition law and joint commercialisation agreements

The following Competition practice note provides comprehensive and up to date legal information covering:

  • EU competition law and joint commercialisation agreements
  • What is a joint commercialisation agreement?
  • Competition concerns
  • Framework for assessing joint commercialisation agreements
  • Application of specific assessment criteria under Horizontal Guidelines
  • Assessment under Article 101(1) TFEU
  • Assessment under Article 101(3)TFEU

EU competition law and joint commercialisation agreements

What is a joint commercialisation agreement?

Joint commercialisation agreements involve cooperation between competitors with regard to the selling, distribution or promotion of their substitute products.

They range from agreements involving the joint determination of all commercial aspects relating to the sale of the products (including price) to more limited agreements that only address one specific commercialisation function (such as distribution, after-sales service, or advertising).

Joint commercialisation agreements are capable of giving rise to significant benefits stemming from economies of scale or scope, especially for smaller producers. However, they can in certain circumstances give rise to serious competition law concerns, in particular where the parties have a significant degree of market power, the agreement is not objectively necessary to enable one or more of the parties to enter the relevant market or the cooperation involves the exchange of competitively sensitive information.

It is therefore crucial to carefully assess joint commercialisation agreements to ensure that the desired benefits are achieved whilst avoiding EU competition law exposure.

Note–certain sectors may have specific guidance available, for example, in the agriculture sector, the Commission has published guidelines on the joint selling of olive oil, beef and veal, and arable crops.

Competition concerns

Joint commercialisation agreements which may affect trade between EU Member States are subject to the rule contained in Article 101(1) TFEU, which prohibits agreements, the object or effect

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