Location: Luxury hotels in Capital A work in a narrow, non-complex and stable oligopoly, with largely homogeneous cost structures, which constitute a market in question distinct from other hotels. They exchange individual information directly on utilization rates and current revenues. In this case, the parties can directly deduct their actual up-to-date prices from the information exchanged. Restrictions that go beyond what is necessary to achieve efficiencies achieved through a marketing agreement do not meet the criteria set out in Article 101, paragraph 3. The question of indispensableity is particularly important for price-fixing or market allocation agreements, which can only be considered indispensable in exceptional circumstances. On the other hand, horizontal cooperation agreements can create competition problems. That is the case, for example. B where the parties agree to set prices or production or share markets, or where cooperation allows the parties to retain, gain or increase market power, which can have negative market effects in terms of price, production, product quality, product diversity or innovation. Both the risk of restrictive effects on competition and the likelihood of efficiency gains increase with the market shares of firms and to what extent standard conditions are used. Therefore, it is not possible to create a general “safe haven” where there is no risk of restrictive effects on competition, nor to assume that efficiency gains are passed on to consumers to a greater extent than the restrictive effects of competition. Similarly, standardization agreements that give certain organizations the exclusive right to verify compliance with the standard go beyond the priority objective of defining the standard and may also restrict competition. However, exclusivity may be justified for a specified period of time, for example. B by the need to recover significant start-up costs (130).
In this case, the standardization agreement should provide appropriate safeguards to mitigate the competitive risks associated with exclusivity. This includes the certification fee, which must be proportionate and proportionate to the cost of compliance monitoring. The content below examines the differences between horizontal and vertical cooperation in the area of EU competition law.