In general, a distinction should be made between R &D agreements and R&D agreements which provide for broader cooperation covering different phases of exploitation of results (i.e. licensing, production or marketing). As mentioned in recital (132), pure R & D agreements will rarely have restrictive effects on competition within the meaning of Article 101(1). This is especially true for R&D, which aims to improve existing products or technologies in a limited way. If, in such a scenario, R&D cooperation covers joint exploitation only through licensing to third parties, it is unlikely that restrictive effects such as compartmentalization problems will be envisaged. However, if the joint production and/or marketing of slightly improved products or technologies is included, the impact of cooperation on competition needs to be examined more closely. Restrictive effects of competition in the form of higher prices or reduced production on existing markets are more likely when strong competitors are involved in such a situation. In general, agreements involving price fixing, common markets or markets or restricted customers limit competition. However, in the context of production agreements, this is not the same if: if the parties have a small cumulative market share, it is unlikely that the horizontal cooperation agreement will have restrictive effects on competition within the meaning of Article 101(1) and, as a general rule, no further analysis is necessary. What is considered to be a `low common market share` depends on the nature of the agreement in question and may result from the `safe haven` thresholds set out in different chapters of those guidelines and, more generally, from the Commission Notice on small agreements which do not appreciably restrict competition under Article 81, paragraph 1 of the Treaty establishing the European Community (de minimis) (hereinafter: 2000,5% of the amount for 1997. If one of the two parties has only a negligible market share and does not have significant resources, even a high common market share cannot normally be considered as an indication of a likely competitive effect on the market (33). Given the diversity of horizontal cooperation agreements and the different effects they may have in different market situations, it is not possible to define a general market share threshold above which sufficient market power can be considered to limit competition.
The potential effects of such agreements may be the loss of competition between the parties to the agreement. Competitors may also benefit from the reduction in competitive pressure resulting from the agreement and may therefore consider it profitable to increase their prices. The reduction of this competitive pressure may lead to an increase in prices on the relevant market. Factors such as whether the parties to the agreement hold high market shares, whether they are close competitors, whether customers have only limited opportunities to switch suppliers, whether competitors are unlikely to increase supply when prices rise and whether one of the parties to the agreement is a significant force of competition is relevant to the assessment of the agreement from a competitive point of view. Market power is a matter of degree. The level of market power necessary to determine an infringement pursuant to Article 101(1) in the case of agreements which effectively restrict competition shall be lower than the level of market power necessary to determine dominance pursuant to Article 102 where a significant level of market power is required. Similarly, the co-ality of costs increases the anti-competitive risks of a horizontal subcontracting agreement where the subcontractor`s contribution from the subcontractor represents a significant part of the variable costs of the final product with which the parties compete. . . .