European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

An agreement that falls foul of Article 101(1) of the Treaty and to which a block exemption cannot apply, may still be exempted individually on the basis of Article 101(3) . While it is for the Commission to prove the appreciable effect of the agreement, it is for undertakings, once that effect has been established, to show that there are efficiency gains able to meet the conditions set out in Art …

Individual exemptions

An agreement that falls foul of Article 101(1) of the Treaty and to which a block exemption cannot apply, may still be exempted individually on the basis of Article 101(3) . While it is for the Commission to prove the appreciable effect of the agreement, it is for undertakings, once that effect has been established, to show that there are efficiency gains able to meet the conditions set out in Article 101(3).

When assessing efficiency gains made by an exclusive distribution agreement, the Commission takes into account the investment made to protect or build brand image, the reduction in logistics costs generated by the economies of scale relating to transport and distribution and the effect on competition of the weakening of intra-brand competition. The position held on the market by the supplier and his competitors is particularly important in this regard. If the competitors are strong, the weakening of intra-brand competition will be offset by the inter-brand competition. On the other hand, if competitors have a similar market share and are in low numbers on the market, there is a risk of collusion . The number of brands distributed for exclusive use by the dealer is decisive in that case: the higher the combined market share of distributed brands, the more inter-brand competition will be reduced. In addition, the reserved territory must not be so extensive so that the final consumer is prevented from having freedom of choice. Certain combinations of restrictions are likely to prevent the exemption from applying. Thus, single-branding can only be combined with exclusive distribution if there is no significant effect of market foreclosure. The combination of exclusive distribution and exclusive purchasing is unlikely to be exempted, unless offset by very clear and substantial efficiencies such as lower prices to all final consumers .

Agreements containing provisions now qualified as hardcore restrictions by the EU authorities  have little chance of being individually exempted. This applies to agreements prohibiting passive sales  or obstructing parallel imports . Similarly, exclusivity for certain wholesalers that only supply particular retailers and exclude ordinary retailers and department stores for the distribution of products with no specific characteristics cannot be exempted .

Guidelines on Vertical Restraints, at pt 74, which states that vertical agreements falling outside the Block Exemption Regulation may need individual examination.

Commission Regulation (EU) No 330/2010, Article 4.

Commission Decision No 88/86/EEC of 18 December 1987, Fisher-Price/Quaker Oats Ltd - Toyco, LawLex200400002447JBJ, Export ban imposed on a wholesaler by a supplier to protect the exclusive distributor in the country where the orders originated. 

Case 25/75 Van Vliet Kwastenfabriek v Dalle Grode [1975] ECR 1103, LawLex200400002773JBJ, exclusivity agreement providing for absolute territorial protection for one distributor; Commission Decision No 80/1333/EEC of 11 December 1980, Hennessy-Henkell, LawLex200500004077JBJ, non-compete and exclusive purchasing clauses together with an undertaking by the supplier to protect its distributor against parallel imports; No 88/86/EEC of 18 December 1987, Fisher-Price/Quaker Oats Ltd - Toyco, LawLex200400002447JBJ, Export ban imposed on a wholesaler by a supplier to protect the exclusive distributor in the country where the orders originated; No 97/123/EC of 4 December 1996, Novalliance/Systemform, LawLex200500004768JBJ, ban on distributors selling to customers located in the area of exclusivity but likely to export the products in question.

Commission Decision No 85/44/EEC of 10 December 1984, Grohe's distribution system, LawLex200500005321JBJ; No 85/45/EEC of 10 December 1984, Ideal-Standard's distribution system, LawLex200500005322JBJ.

European Competition Law

118. Individual exemptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

118. Individual exemptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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