The new BER entered into force on 1 January 2011 and are valid until 31 December 2022. Agreements exempted by the former beRs benefit from a transitional period of two years, which remains subject to an exemption until 31 December 2012. In some cases, public authorities encourage companies to conclude horizontal cooperation agreements in order to achieve a public policy objective through self-regulation. However, undertakings remain subject to Article 101 where a national law merely encourages or facilitates them to engage in autonomous anti-competitive behaviour (22). In other words, the fact that the authorities encourage a horizontal cooperation agreement does not mean that it is authorised by Article 101 (23). Article 101 applies only where national laws engage in anti-competitive behaviour on the part of undertakings or where undertakings create a legal framework which precludes any room for manoeuvre for competition activities (24). In that case, the restriction of competition is not due, as implicitly required by Article 101, to the autonomous conduct of the companies and they are protected against all the consequences of an infringement of that Article (25). Each case should be assessed on the basis of its own facts on the basis of the general principles set out in these guidelines. Third, marketing agreements can become a means for the parties to share markets or to allocate orders or clients, for example where the parties` production sites are in different geographic markets or where the agreements are reciprocal. Marketing agreements between competitors may have restrictive effects on competition only if the parties have a certain degree of market power. In most cases, it is unlikely that there will be market power if the parties to the agreement together hold a market share not exceeding 15%. In any event, if the parties` combined market share does not exceed 15%, it is likely that the conditions set out in Article 101(3) are fulfilled. Most R&D agreements are not covered by Article 101(1).
First, for many R&D cooperation agreements, this can be said at a fairly early stage, far from exploiting the possible results. Marketing agreements include cooperation between competitors in the sale, distribution or promotion of their substitute products. This type of agreement can vary widely depending on the marketing functions covered by the cooperation. At one end of the spectrum, joint sales agreements can lead to a common definition of all commercial aspects related to the sale of the product, including price. On the other hand, there are more limited agreements that only address a specific marketing function such as distribution, after-sales service or advertising. . . .