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. Standardisation agreements generally have a considerable positive economic impact (102), for example by promoting economic penetration of the internal market and encouraging the development of new and improved products or markets and improving supply conditions. As a result, standards generally increase competition and reduce production and distribution costs, which benefits economies as a whole. Standards can maintain and improve quality, provide information and ensure interoperability and compatibility (which increases consumer value). The assessment of the contested or effective restrictions of competition referred to in Article 101(1) is only one page of the examination. The other part, which is reflected in Article 101(3), is the assessment of the pro-competitive effects of agreements restricting competition.
The general approach in the application of Article 101(3) is set out in the general guidelines. If, on a case-by-case basis, a restriction of competition within the meaning of Article 101(1) is demonstrated, Article 101(3) may be invoked for the defence. In accordance with Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (35), the burden of proof under Article 101(3) is to be on the undertaking claiming the advantage of that provision. Consequently, the factual arguments and evidence submitted by the undertaking(s) must enable the Commission to conclude that the agreement at issue is sufficiently appropriate to have pro-competitive effects or that this is not the case (36). . . .