As part of its “modernisation” programme, the EC Commission has published a Notice
on the principles that govern whether an agreement should be granted an exemption
under Article 81(3).1 Under the reforms, exemptions can now for the first time be granted
by national competition authorities, and parties to such agreements are now required to
undertake their own legal assessment since it no longer remains open to them to notify
their agreements to the Commission.
The Notice describes a framework for the economic analysis of how an agreement
that is held to restrict competition may nevertheless be lawful because it meets the four
efficiency defence criteria of Article 81(3). The framework seeks to follow the approach
taken on efficiencies in horizontal mergers: first, establish whether there is a likelihood
of increased prices; then, if so, evaluate the existence of offsetting efficiencies. As we
explain in this Brief, however, there are several difficulties in extending this framework
from mergers to the assessment of agreements.
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