Even if an agreement is not clearly part of a category exemption, it is still not automatically illegal or unenforceable. An agreement may also be excluded individually, as competition restrictions are offset by their positive effects. The burden of proof to meet the requirements of the individual exemption is quite onerous and it is the responsibility of companies to ensure that they themselves assess their compliance with competition rules; it is not possible to apply to the competition authorities for authorisation, except in very limited circumstances. In the neoclassical economy, price-fixing is ineffective. The anti-competitive agreement between producers to set prices above market prices transfers some of the consumer surplus to these producers and also results in net weight loss. A characterization that a particular type of conduct in itself constitutes a breach of an agreement means that it falls within the rare category of agreements which, in the view of cartel and abuse of dominance legislation, in almost all cases have little or no competitive value. In practice, a plaintiff who, in itself, was suing in a cartel, has a much simpler path to victory. Such an applicant must not present anti-competitive prejudice (often including complex market and market power analyses) and the defendants are not in a position to respond with commercial or competitive justifications for their conduct. The types of claims that are in themselves breaches of cartels are horizontal price fixings (i.e. price fixings between or between competitors), market distribution between competitors, bid manipulation, and certain forms of group boycott and engagement agreements.
A producer or reseller considering a resale price maintenance contract should consult with a lawyer to determine whether the agreement can be reviewed for cartels and abuse of dominance. For example, courts (and antitrust authorities) may review these agreements more than usual if (1) several producers decide to maintain the resale price; (2) when retailers have kicked off vertical pricing; and (3) where one or more contracting parties have market power. Other agreements may be automatically exempted under a “category exemption” – a category exemption – from which certain agreements within its scope are automatically exempt. Exemptions by different categories may apply depending on the nature of the agreement or the market sector concerned. For example, there are category exemptions for vertical agreements, technology transfer agreements and research and development agreements If all suppliers raise prices at the same time, this goes beyond the framework of input cost changes.