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Contents
- Preliminary Material
- Main Text
- Part I Introduction
- 1 Introduction
- Preliminary Material
- A At a Glance
- B Article 101 TFEU
- C Implementation of Article 101 TFEU
- D Regulations 330/2010 and 461/2010
- E Enforcement of Article 101 TFEU
- 1.62
- (1) Public enforcement
- (2) Private enforcement
- F Hard v Soft EU Competition Law
- 1 Introduction
- Part II Vertical Agreements Under Regulation 330/2010
- 2 Road Map
- Preliminary Material
- A At a Glance
- B First Block: General Scope of Application
- 2.09
- (1) First step: two or more undertakings
- (2) Second step: vertical agreement
- (3) Third step: effect on trade between Member States
- (4) Fourth step: vertical restraints
- (5) Conclusion
- C Second Block: Limitations to the General Scope of Application
- 2.48
- (1) Fifth step: associations of undertakings
- (2) Sixth step: IPR
- 2.52
- Are the IPR assigned to, or licensed for use by, the buyer?
- Do the IPR not constitute the primary object of the vertical agreement?
- Are the IPR directly related to the use, sale or resale of goods and/or services by the buyer or its customers?
- Do the IPR provisions not contain restrictions of competition having the same object as vertical restraints that are not exempted under Regulation 330/2010?
- (3) Seventh step: involvement of competitors
- (4) Eighth step: other block exemptions
- (5) Conclusion
- D Third Block: Market Share Limits
- E Fourth Block: Substantive Assessment
- F Fifth Block: Non-Application and Withdrawal
- G Practical Conclusions
- 3 Article 2(1): Scope of Application of regulation 330/2010
- Preliminary Material
- A At a Glance
- B First Step: Involvement of Two or More Undertakings
- 3.04
- (1) The concept of ‘undertaking’
- Definition.
- Economic activity.
- Not an economic activity.
- No need for legal incorporation.
- No need for profit.
- Final consumers.
- Public bodies.
- Public bodies in the exercise of official authority (‘imperium’).
- Public bodies engaging in an economic activity.
- Dividing line between public authority and economic activity.
- Services of general economic interest.
- Professional associations.
- (2) At least two independent undertakings
- (3) Two or more independent undertakings
- (4) Practical summary
- C Second Step: Vertical Agreements
- (1) Introduction
- (2) Agreements and concerted practices
- General
- Agreements
- Broad interpretation of the concept ‘agreement’.
- Concurrence of wills—irrelevance of the form of the agreement.
- Concurrence of wills—irrelevance of implementation.
- Concurrence of wills—consent by contract or by conduct.
- Concurrence of wills—consent by contract.
- Concurrence of wills—consent by conduct.
- Concurrence of wills—party-specific.
- Concerted practice
- (3) Undertakings operating at a different level of the production or distribution chain
- (4) Agreements or concerted practices which relate to the conditions under which the parties may purchase, sell, or resell certain goods or services
- (5) Practical summary
- D Third Step: Effect on Trade between Member States
- 3.109
- 3.110
- 3.111
- (1) Specific role assumed by the effect on trade requirement
- (2) The effect on trade requirement and the territorial scope of application of EU competition law
- (3) The application of the effect on trade concept to vertical agreements
- (4) Vertical agreements which appreciably affect inter-State trade in the EEA
- (5) Practical summary
- E Fourth Step: Presence of Vertical Restraints
- 3.165
- 3.166
- 3.167
- (1) Restrictions by object or by effect
- (2) Appreciability standard
- 3.186
- Restriction by object
- Restriction by effect
- (3) Escape routes
- (4) Practical summary
- 4 Article 2(2)–(5): Limits to the Scope of Application of Regulation 330/2010
- Preliminary Material
- A At a Glance
- B Fifth Step: Agreements Entered into by an Association of Undertakings
- C Sixth Step: The Role of IPR
- (1) Introduction
- (2) Conditions
- First condition: IPR as part of a vertical agreement
- Second condition: IPR assigned to, or licensed for use by, the buyer
- Third condition: IPR that do not constitute the primary object of the agreement
- Fourth condition: IPR which are directly related to the use, sale, or resale of goods or services
- Fifth condition: IPR which do not contain restrictions of competition having the same object as vertical restraints which are not exempted
- (3) Trademarks, copyright, and know-how
- (4) Practical summary
- D Seventh Step: Agreements between Competitors
- E Eighth Step: The Applicability of Other BER
- (1) Introduction
- (2) Relationship with the BER on horizontal cooperation agreements
- General
- The relation between Regulation 1217/2010 and Regulation 330/2010
- The relation between Regulation 1218/2010 and Regulation 330/2010
- (3) Relation with Regulation 316/2014 (TTBER)
- (4) Relation with the motor vehicle distribution BER
- (5) Practical summary
- 5 Article 3: Market Share Threshold
- Preliminary Material
- A At a Glance
- B Background to the Market Share Limits
- C Ninth Step: Definition of the Relevant Market
- 5.12
- (1) Definition of the relevant market
- (2) Definition of the supplier’s relevant market
- (3) Definition of the buyer’s relevant market
- (4) Practical summary
- D Tenth Step: Calculation of Market Shares
- E Application of the Market Share Limits
- 6 Article 4: Hardcore Restrictions
- Preliminary Material
- A At a Glance
- B The Concept of ‘Hardcore Restrictions’
- (1) General
- (2) Imposition of a hardcore restriction
- (3) Restriction ‘by object’
- (4) Practical summary
- C Territorial Scope of Application
- D Article 4(a)—RPM
- E Article 4(b)—Territorial and Customer Restrictions
- (1) Introduction
- (2) The rule of the prohibition of customer and territorial restrictions
- 6.96
- Restrictions imposed on buyers, not on suppliers
- Restrictions imposed on buyers, and also on customers of the buyers
- Definition of ‘buyer’ and ‘buyer’-related concepts
- Restrictions applying in the EEA
- Direct restrictions
- Indirect restrictions
- Location clauses
- Escape routes for customer or territorial restrictions
- (3) First exception: restrictions on active sales
- General
- Definition of active sales
- Restrictions on active sales prior to Regulation 2790/99
- Territorial restrictions on active sales according to Regulation 330/2010
- 6.159
- First and second condition: exclusivity and parallel imposition of an active sales restriction
- The condition of parallel imposition.
- Overview.
- Third condition: no limitation of sales by the customers of the buyer.
- Sub-dealers.
- Independent resellers.
- Final customers.
- Connected undertakings.
- Practical summary.
- Restrictions on active sales to an exclusive customer group according to Regulation 330/2010
- Restrictions on active sales covering combination of exclusive territories and exclusive customer groups according to Regulation 330/2010
- Direct sales by the supplier
- (4) Second exception: customer restrictions imposed on wholesalers
- (5) Third exception: restriction of sales to unauthorized distributors in the context of a selective distribution system
- (6) Fourth exception: restrictions on the resale of components
- (7) Practical summary
- F Territorial and Customer Restrictions in a Selective Distribution System
- G Restrictions on the Sale of Spare Parts
- 7 Article 5: Excluded Restrictions
- Preliminary Material
- A At a Glance
- B The Concept of ‘Excluded Restrictions’
- C Non-Compete Obligations Outside Article 101(1) TFEU
- D Non-Compete Obligations Under Regulation 330/2010
- E Non-Compliance with the Conditions for Block Exemption Under Regulation 330/2010
- 8 Article 6 (Non-Application) and Article 29 Regulation 1/2003 (Withdrawal)
- 9 Frequently Used Distribution and Supply Scenarios
- Preliminary Material
- A At a Glance
- B Selective Distribution
- C Non-Selective Distribution
- D Choice Between Selectivity and Non-Selectivity
- E Franchising
- F Agency
- G Industrial Supply and Subcontracting
- (1) Definition
- (2) Are the exclusive use and supply obligations in a supply or subcontracting agreement within the scope of Article 101(1) TFEU?
- (3) Are the exclusive use and supply obligations in a supply or subcontracting agreement covered by a BER?
- (4) Do the exclusive use and supply obligations in a supply or subcontracting agreement benefit from an individual exemption pursuant to Article 101(3) TFEU?
- (5) Practical summary
- H E-Commerce
- (1) Introduction
- (2) Can a supplier prohibit online sales by its buyers?
- (3) Can a supplier restrict online sales by its buyers?
- (4) Can a supplier otherwise restrict the online sales of its buyers?
- (5) How can a supplier protect the image of its products when they are sold online?
- (6) What about online pricing?
- 9.280
- 9.281
- Does a supplier have the right to charge different wholesale prices depending on whether products are sold offline or online (‘dual pricing’)?
- Does a supplier have the right to impose online advertising pricing restrictions?
- Are price parity clauses covered by Article 101(1) TFEU and, if so, can they benefit from an exemption?
- 2 Road Map
- Part III Vertical Agreements Outside Regulation 330/2010
- 10 Economics and Self-Assessment of Vertical Agreements
- Preliminary Material
- A At a Glance
- B Overarching Principles Governing Self-Assessment
- C Framework of Analysis
- 10.10
- 10.11
- 10.12
- (1) Assessment from the perspective of Article 101(1) TFEU
- (2) Assessment from the perspective of Article 101(3) TFEU
- (3) Practical approach
- D Positive and Negative Effects of Vertical Restraints
- 10.39
- (1) Negative effects of vertical restraints
- (2) Positive effects of vertical restraints
- 10.53
- 10.54
- 10.55
- 10.56
- Free-riding between suppliers
- Free-riding between buyers
- Opening up or entry into new markets
- Certification free-rider issue
- Hold-up problem
- Specific hold-up problem (transfer of substantial know-how)
- Vertical externality issue
- Economies of scale in distribution
- Capital market imperfections
- Uniformity and quality standardization
- E Indications in the Vertical Guidelines
- 10 Economics and Self-Assessment of Vertical Agreements
- Part IV Motor Vehicle Distribution
- 11 Motor Vehicle Distribution
- Preliminary Material
- A At a Glance
- B General Overview of the Current Block Exemption
- C Position of the Different Market Participants
- D Distribution of Motor Vehicles
- (1) Introduction
- (2) Market definition and market shares
- 11.63
- Market definition
- Calculation of market share
- (3) The block exemption regime
- 11.98
- 11.99
- 11.100
- General conditions
- Hardcore restrictions
- Customer restrictions
- Excluded restrictions
- Withdrawal and non-application
- (4) Self-assessment
- E Provision of After-Sales Services
- (1) Introduction
- (2) Market definition and market shares
- (3) The block exemption regime
- (4) Self-assessment
- 11.202
- 11.203
- Selection of network formula
- Individual restrictions
- 11.215
- Obligation not to service other brands.
- Obligation to use only genuine spare parts of the manufacturer.
- Restrictions discouraging the use of independent workshops.
- Restrictions related to warranty work.
- Warranty work—parts restriction.
- Warranty work—servicing restriction.
- Warranty work—general observations.
- Restrictions in leasing agreements.
- Hardcore restrictions listed in Regulation 330/2010 and Regulation 461/2010.
- Access to technical information, tooling, and training (the ‘3Ts’)
- F Distribution of Spare Parts
- G Practical Summary
- 11 Motor Vehicle Distribution
- Part I Introduction
- Further Material