The prohibition laid down in Article 101(1) of the Treaty on the Functioning of the European Union shall not apply, during the period from 1 June 2010 to 31 May 2011, to agreements which were already in force on 31 May 2010 and which do not fulfil the conditions for exemption laid down in this Regulation but which fulfilled the conditions for exemption laid down in Regulation (EC) No 2790/1999 of 31 May 2010. It examines the application of the Commission`s Vertical Agreement Block Exemption Regulation and the accompanying Commission Vertical Guidelines, which establish principles for the evaluation of vertical agreements in accordance with Article 101 TFEU. It also examines the stricter provisions of the Commission`s block exemption regulations for motor vehicles in the motor vehicle sector. the duration of the obligation is limited to a period of one year after the termination of the contract. 2. Where, in a multi-party agreement, an undertaking purchases the contract goods or services from an undertaking party to the agreement and sells the contractual goods or services to another undertaking party to the agreement, for the purposes of paragraph 1, the market share shall comply with the market share threshold provided for in that paragraph, both as a buyer and as a supplier, in order to apply for the exemption provided for in Article 2. Market developments and, in particular, the growth of online sales and online platforms, which have changed the way many companies provide and distribute goods and services, are of great importance for the European Commission`s assessment. This shift towards a digital economy has led to several problems in the operation of the VBER, making it increasingly difficult for companies to self-assess their vertical agreements with confidence. Margrethe Vestager, Executive Vice-President in charge of competition policy, acknowledged that the rules need to be adapted to remain appropriate in a rapidly changing digital world5 and that this will certainly be a challenge for the Commission in revising the rules. 2.7 How are vertical agreements analysed when one of the parties is vertically integrated at the same level as the other party (so-called ”double distribution”)? Are they treated as vertical or horizontal agreements? The Guidelines provide comprehensive guidance on the application of the Block Exemption Regulation and on the assessment of the legality of agreements outside its scope of protection. Together, the Block Exemption Regulation and the Guidelines effectively create a code for the application of EU competition law (and thus national competition law) to vertical agreements. The Commission is clearly focusing on digital markets. This is reflected both in the vertical deals focused on e-commerce and in the dominance in which tech companies such as Google, Facebook, Amazon and Apple are or have been studied.

Vertical agreements that do not meet these conditions require self-assessment. The Commission`s guidance on such an evaluation is limited. Background: The European Commission (”Commission”) has recently presented long-awaited plans for the revision of its Vertical Block Exemption Regulation (”VBER”) and vertical guidelines. The VBER contains Safe Harbor provisions that free certain vertical supply chain agreements from antitrust challenges. To be eligible, the market share must not exceed 30 % of one of the parties and the agreement must not contain a ”hardcore restriction”. (b) limit the `current safe harbour for dual distribution` to cases where the parties` combined retail market share does not exceed 10 %, in line with the market share threshold for agreements between competitors used in the de minimis Notice (Article 2(4)). A refusal to supply may constitute an abuse if several conditions are met: (i) the undertaking refusing delivery is vertically integrated and dominant on the upstream market; (ii) the product to which access is denied is essential for competition in the downstream market; (iii) the refusal results in the elimination of effective competition on the downstream market; and (iv) an objective justification is missing. The hardcore restrictions (e.B.RPM, absolute territorial protection, distribution of customers) listed in Article 4 of the Block Exemption Regulation are considered prejudicial to competition and render an entire agreement unprotected and likely illegal.

If an agreement contains a less severe ”excluded restriction”, the specific restriction is unenforceable, but the rest of the agreement is protected. Enforcement authorities are only required to demonstrate anti-competitive effects in cases where restrictive practices are not considered to be restrictions of purpose. In the case of vertical agreements, the Commission shall refer to the list of hardcore restrictions set out in Article 4 of Regulation (EU) No 330/2010 in order to define the restrictions relevant to the subject matter. For all other restrictions in vertical agreements, anti-competitive effects must be demonstrated. the supplier`s market share includes all goods or services supplied to vertically integrated distributors for the purpose of sale; Price discrimination may benefit from an automatic exemption in the case of vertical agreements covered by the block exemption. However, certain measures to protect price discrimination practices (such as blocking cross-border sales, customer restrictions or vertical prices) may constitute hardcore restrictions. A vertical agreement between competing undertakings is in principle excluded from the block exemption. An exception is when the supplier is a manufacturer and distributor of goods and the reseller/buyer is a distributor and is not in competition at the manufacturing level.

The block exemption contains a similar exception as regards the provision of services. Dual distribution entities that meet this requirement may fall within the scope of the block exemption (see Article 2(4) of Regulation (EU) No 330/2010). The case-by-case assessment of agreements under Article 101(1) of the Treaty must take account of several factors, in particular the structure of the market on the offer and purchase side. The restriction of market share, the non-exemption of certain vertical agreements and the conditions laid down in this Regulation normally ensure that the agreements to which the block exemption applies do not allow the undertakings concerned to eliminate competition in respect of a substantial part of the products concerned. Regulation No 19/65/EEC of the Council of 2 March 1965 on the application of Article 85 (3) of the Treaty to certain categories of agreements and concerted practices Official Journal 36, 6.3.1965, p. 1. 533–535 2.1 Are vertical agreements concerned and examined at a high level? The Vertical Block Exemption Regulation1 (VBER) – the antitrust regime for most vertical agreements in Europe2 – entered into force on 1 June 2010. It creates, among other things, a safe haven for vertical agreements that fulfil certain conditions and practically protects them from the application of Article 101 of the Treaty on the Functioning of the European Union (TFEU). Guided by the VBER and the vertical guidelines published by the European Commission3, it is up to companies to assess their vertical agreements themselves.

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