Background

Economic theory of vertical restraints

Economic theory and competition law

Should distributors have more protection?

Vertical restraints put to the test of economic analysis

Structure of distribution law - Book plan

General bibliography

Introduction

Localizing the anticompetitive effects

Effect on trade between Member States

Scope ratione loci

Concept of an undertaking

Intra-group agreements

Scope ratione personae

Applicability of competition law to vertical agreements

Definition of the relevant market

Anticompetitive object or effect

Appreciability threshold

Concept of agreement and concerted practice

Prohibition of vertical restraints

Block exemptions

Individual exemptions and rule of reason

Exemption of vertical restraints

Control of vertical restraints

Prohibition

Exoneration

Restrictive agreements

Principle

Applications

Abuse of dominant position

Exclusive purchase/Exclusive supply

Resale outside network

International agreement

Exclusive distribution agreements

Manufacturer's guarantee

Protection of the brand

Protecting the network against third parties

Relations between the parties

Selective distribution

Hardcore restrictions

Individual exemptions

Rule of reason

Prohibition of restrictive agreements and individual exemptions

Distribution of new motor vehicles : Regulation No 330/2010

After-sales : Regulation No 461/2010

Block exemption

Motor vehicle distribution agreements

Merger control

Franchising

Commercial agency and competition

EU harmonization

International agency

Commercial agents

This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

European Distribution Law

Insofar as restrictions on competition must be such as to produce an effect on the market, EU authorities generally find that only hindrances that are large or “appreciable” enough concern competition law. Drawing inspiration from its decision-making practice , the Commission sets forth an “appreciability threshold”  in the 30 August 2014 notice .
According to the notice, agreements between undert …

Notice on agreements of minor importance (de minimis)

Insofar as restrictions on competition must be such as to produce an effect on the market, EU authorities generally find that only hindrances that are large or “appreciable” enough concern competition law. Drawing inspiration from its decision-making practice , the Commission sets forth an “appreciability threshold”  in the 30 August 2014 notice .

According to the notice, agreements between undertakings that affect trade between Member States do not appreciably affect competition within the meaning of Article 101(1) TFEU:

a) if the aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are actual or potential competitors on any of these markets (agreements between competitors); or

b) if the market share held by each of the parties to the agreement does not exceed 15% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are not actual or potential competitors on any of these markets (agreements between non-competitors) .

The Commission has added two exceptions to those thresholds:

- the thresholds are brought down to 5% when, on the market in question, competition is restricted by a cumulative foreclosure effect from parallel networks of similar agreements, whether those agreements be horizontal or vertical. The cumulative foreclosure effect is only probable if more than 30% of the market in question is covered by similar agreements.

- exceeding the specified thresholds (5%, 10% and 15%) for two consecutive calendar years by two points has no restrictive effect.

The market share controlled by the participants to the agreement is not the only indication as to degree of appreciability. 

The safe harbor created by the market share threshold does not apply to restrictions by object, which, in agreements between competitors, are those which: a) fix prices when selling products to third parties; b) limit output or sales; or c) allocate markets or customers . The Commission will also not apply the safe harbor referred to in the De Minimis Notice to agreements containing any of the restrictions that are listed as hardcore restrictions in any current or future Commission block exemption regulations.

The terms “parties to the agreement” mean not only the participating undertakings, but also those connected to said undertaking, namely those that have control over the parties (controlling undertakings), those controlled by the parties (undertakings under control) and those in which the undertakings hold joint control. More than just the extent of the effects produced by the agreement at issue, the appreciability threshold thus tends to take account of the economic strength of the groups to which the participating undertakings belong, as well as the degree of concentration on the market on which the agreement operates.

Generally, the competition authorities consider that a market share greater than or equal to 30% is sufficient to demonstrate the appreciable effect of restriction: market share less than or equal to 30%: Commission Decision No 78/172 of 21 December 1977, Spices, LawLex200400002398JBJ; less than or equal to 50 %: Commission Decisions No 76/915 of 1st December 1976, Miller International Schallplatten GmbH, LawLex200400003447JBJ; No 98/531 of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ; Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653, LawLex200400003524JBJ; more than 50%: Case 61/80 Coöperatieve Stremsel- en Kleurselfabriek v Commission [1981] ECR 851, LawLex200500004084JBJ. - Market share must be assessed for all of the parties to the agreement: Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ.

Commission Notice EU No 2014/C 291/01 of 30 August 2014, on agreements of minor importance which do not appreciably restrict competition under Article 101(01) TFEU of the Treaty on the Functioning of the European Union.

The Guidelines on Vertical Restraints are without prejudice to the application of the Commission Notice on agreements of minor importance: pt 8 et seq.

Guidelines on Vertical Restraints of 2022, pt 28: “The Commission considers that vertical agreements between small and medium-sized undertakings ("SMEs") are rarely capable of appreciably affecting trade between Member States. The Commission also considers that such agreements rarely appreciably restrict competition within the meaning of Article 101(1) of the Treaty, as interpreted by the Court of Justice of the European Union, unless they include restrictions of competition by object within the meaning of Article 101(1) of the Treaty. Therefore, vertical agreements between SMEs generally fall outside the scope of Article 101(1) of the Treaty.”

Commission Notice 2014/C 291/01, point 13: “This Notice does not cover agreements which have as their object the prevention, restriction or distortion of competition within the internal market. The Commission will thus not apply the safe harbour created by the market share thresholds set out in points 8, 9, 10 and 11 (2) to such agreements. For instance, as regards agreements between competitors, the Commission will not apply the principles set out in this Notice to, in particular, agreements containing restrictions which, directly or indirectly, have as their object: (a) the fixing of prices when selling products to third parties; (b) the limitation of output or sales; or (c) the allocation of markets or customers. Likewise, the Commission will not apply the safe harbour created by those market share thresholds to agreements containing any of the restrictions that are listed as hardcore restrictions in any current or future Commission block exemption regulation (3), which are considered by the Commission to generally constitute restrictions by object.”

European Distribution Law

32. Notice on agreements of minor importance (de minimis)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

32. Notice on agreements of minor importance (de minimis)

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise