Non-poaching clause in the services outsourcing agreement The assessment of Article 101(3) TFEU is carried out by means of a market analysis that carefully assesses the economic and anti-competitive effects of an agreement. Only if the positive effects outweigh the negative effects can an undertaking benefit from an exemption from the prohibition of cartels, despite high market shares. Restrictions that go beyond what is necessary to achieve the efficiency gains generated by an R&D agreement do not meet the criteria set out in Article 101(3). In particular, the restrictions referred to in Article 5 of the R & D Block Exemption Regulation may have the effect of making the criteria in Article 101(3) less likely after individual examination. It will therefore generally be necessary for the parties to an R&D agreement to prove that these restrictions are indispensable for cooperation. The Commission Decision on the approval of standard clauses for the inclusion in bilateral air services agreements between Member States and third countries, established jointly by the Commission and the Member States, of production agreements including marketing functions, such as joint marketing or joint marketing, present a higher risk of restrictive effects on competition than joint production agreements. Joint marketing brings cooperation closer to the consumer and generally involves the joint fixing of prices and sales, i.e. practices which present the highest risks to competition. However, joint distribution agreements for jointly produced products are generally less likely to restrict competition than stand-alone joint distribution agreements. Similarly, a joint distribution agreement, necessary at the beginning of the joint production agreement, is less likely to restrict competition than if it were not necessary for joint production. Marketing agreements can lead to restrictions of competition in several respects. First, and most obviously, marketing agreements can lead to price cartels. The objective of these guidelines is to create an analytical framework for the most common types of horizontal cooperation agreements; research and development agreements, production agreements, including subcontracting and specialisation agreements, purchasing agreements, marketing agreements, standardisation agreements, including model contracts and exchange of information.
This framework is mainly based on legal and economic criteria that help to analyse a horizontal cooperation agreement and the context in which it arises. Economic criteria, such as the market power of the parties and other factors related to the structure of the market, are a key element in assessing the impact of the market that may be caused by a horizontal cooperation agreement and, therefore, for the assessment provided for in Article 101. The exchange of information takes place in different contexts. There are agreements, decisions of associations of undertakings or concerted practices which exchange information whose main economic function is the exchange of information. In addition, the exchange of information may be part of another type of horizontal cooperation agreement (e.g. B the parties to a production agreement share certain cost information). The evaluation of the latter type of exchange of information should be carried out as part of the evaluation of the horizontal cooperation agreement itself. . . .