II
(Non-legislative acts)
REGULATIONS
COMMISSION REGULATION (EU) No 330/2010
of 20 April 2010
on the application of Article 101(3) of the Treaty on the Functioning of the European Union to
categories of vertical agreements and concerted practices
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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 ( 1 ),
and in particular Article 1 thereof,
Having published a draft of this Regulation,
After consulting the Advisory Committee on Restrictive
Practices and Dominant Positions,
Whereas:
(1) Regulation
No 19/65/EEC empowers the Commission to apply Article 101(3) of the Treaty on the Functioning of
the European Union (*) by regulation to certain categories of vertical agreements and corresponding concerted practices falling within Article 101(1) of the Treaty.
(2) Commission
Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3)
of the Treaty to categories of vertical agreements and concerted practices ( 2 ) defines a category of vertical agreements which the Commission regarded as normally satisfying the conditions laid down in Article 101(3) of the Treaty. In view of the overall positive experience with the application of that Regu lation, which expires on 31 May 2010, and taking into account further experience acquired since its adoption, it is appropriate to adopt a new block exemption regu lation.
(3) The category of agreements which can be regarded as
normally satisfying the conditions laid down in Article 101(3) of the Treaty includes vertical agreements for the purcha or sale of goods or rvices where tho agreements are concluded between non-competing undertakings, between certain competitors or by certain associations of retailers of goods. It also includes vertical agreements containing ancillary provisions on the assignment or u of intellectual property rights. The term ‘vertical agreements’ should include the corre sponding concerted practices.
(4)
For the application of Article 101(3) of the Treaty by regulation, it is not necessary to define tho vertical agreements which are capable of falling within Article 101(1) of the Treaty. In the individual a
sssment of agreements under Article 101(1) of the Treaty, account has to be taken of veral factors, and in particular the market structure on the supply and purcha side.
(5) The benefit of the block exemption established by this
Regulation should be limited to vertical agreements for
which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty.
( 1 ) OJ 36, 6.3.1965, p. 533.
(*) With effect from 1 December 2009, Article 81 of the EC Treaty has become Article 101 of the Treaty on the Functioning of the European Union. The two Articles are, in substance, identical. For the purpos of this Regulation, references to Article 101 of the Treaty on the Functioning of the European Union should be understood as references to Article 81 of the EC Treaty where appropriate.
违章投诉( 2 ) OJ L 336, 29.12.1999, p. 21.
(6) Certain types of vertical agreements can improve
economic efficiency within a chain of production or
distribution by facilitating better coordination between the participating undertakings. In particular, they can lead to a reduction in the transaction and distribution costs of the parties and to an optimisation of their sales and investment levels.
(7) The likelihood that such efficiency-enhancing effects will
outweigh any anti-competitive effects due to restrictions
contained in vertical agreements depends on the degree of market power of the parties to the agreement and, therefore, on the extent to which tho undertakings face competition from other suppliers of goods or rvices regarded by their customers as interchangeable or substitutable for one another, by reason of the products' characteristics, their prices and their intended u.
(8) It can be presumed that, where the market share held by
each of the undertakings party to the agreement on the
relevant market does not exceed 30 %, vertical agreements which do not contain certain types of
vere restrictions of competition generally lead to an improvement in production or distribution and allow consumers a fair share of the resulting benefits.
(9)
Above the market share threshold of 30 %, there can be no presumption that vertical agreements falling within the scope of Article 101(1) of the Treaty will usually give ri to objective advantages of such a character and size as to compensate for the disadvantages which they create for competition. At the same time, there is no presumption that tho vertical agreements are either caught by Article 101(1) of the Treaty or that they fail to satisfy the conditions of Article 101(3) of the Treaty.
(10) This
Regulation should not exempt vertical agreements containing restrictions which are likely to restrict
competition and harm consumers or which are not indis pensable to the attainment of the efficiency-enhancing effects. In particular, vertical agreements containing certain types of vere restrictions of competition such as minimum and fixed resale-prices, as well as certain types of territorial protection,
should be excluded from the benefit of the block exemption established by this Regulation irrespective of the market share of the under takings concerned.
(11) In order to ensure access to or to prevent collusion on
the relevant market, certain conditions should be attached to the block exemption. To this end, the exemption of non-compete obligations should be limited to obligations which do not exceed a defined
duration. For the same reasons, any direct or indirect obligation causing the members of a lective distribution system not to ll the brands of particular competing suppliers should be excluded from the benefit of this Regulation.
(12) The
market-share limitation, the non-exemption of certain vertical agreements and the conditions provided for in this Regulation normally ensure that the agreements to which the block exemption applies do not enable the participating undertakings to eliminate competition in respect of a substantial part of the products in question.
(13)
The Commission may withdraw the benefit of this Regu lation, pursuant to Article 29(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the imple mentation of the rules on competition laid down in
Articles 81 and 82 of the Treaty ( 1 ), where it finds in a
particular ca that an agreement to which the exemption provided for in this Regulation applies nevertheless has effects which are incompatible with Article 101(3) of the Treaty.
(14) The
competition authority of a Member State may withdraw the benefit of this Regulation pursuant to Article 29(2) of Regulation (EC) No 1/2003 in respect of the territory of that Member State, or a part thereof where, in a particular ca, an agreement to which the exemption provided for in this Regulation applies never theless has effects which are incompatible with Article 101(3) of the Treaty in the territory of that Member State, or in a part thereof, and where such territory has all the characteristics of a distinct geographic market.
(15) In励志标题
determining whether the benefit of this Regulation should be withdrawn pursuant to Article 29 of Regu lation (EC) No 1/2003, the anti-competitive effects that may derive from the existence of parallel networks of vertical agreements that have similar effects which significantly restrict access to a relevant market or competition therein are of particular importance. Such cumulative effects may for example ari in the ca of lective distribution or non compete obligations.
(16) In
order to strengthen supervision of parallel networks of vertical agreements which have similar anti-competitive effects and which cover more than 50 % of a given market, the Commission may by regulation declare this Regulation inapplicable to vertical agreements containing specific restraints relating to the market concerned, thereby restoring the full application of Article 101 of the Treaty to such agreements,
( 1 ) OJ L 1, 4.1.2003, p. 1.
HAS ADOPTED THIS REGULATION:
Article 1
Definitions
1. For the purpos of this Regulation, the following definitions shall apply:
(a) ‘vertical agreement’ means an agreement or concerted
practice entered into between two or more undertakings each of which operates, for the purpos of the agreement or the concerted practice, at a different level of the production or distribution chain, and relating to the conditions under which the parties may purcha, ll or rell certain goods or rvices;
(b) ‘vertical restraint’ means a restriction of competition in a
vertical agreement falling within the scope of Article 101(1) of the Treaty;
(c) ‘competing undertaking’ means an actual or potential
competitor; ‘actual competitor’ means an undertaking that is active on the same relevant market; ‘pot
ential competitor’ means an undertaking that, in the abnce of the vertical agreement, would, on realistic grounds and not just as a mere theoretical possibility, in ca of a small but permanent increa in relative prices be likely to undertake, within a short period of time, the necessary additional investments or other necessary switching costs to enter the relevant market;
(d) ‘non-compete obligation’ means any direct or indirect obli
gation causing the buyer not to manufacture, purcha, ll or rell goods or rvices which compete with the contract goods or rvices, or any direct or indirect obligation on the buyer to purcha from the supplier or from another undertaking designated by the supplier more than 80 % of the buyer's total purchas of the contract goods or rvices and their substitutes on the relevant market, calculated on the basis of the value or, where such is standard industry practice, the volume of its purchas in the preceding calendar year;
(e) ‘lective distribution system’ means a distribution system
where the supplier undertakes to ll the contract goods or rvices, either directly or indirectly, only to distributors lected on the basis of specified criteria and where the distributors undertake not to ll such goods or rvices to unauthorid distributors within the territory rerved by the supplie
r to operate that system; (f) ‘intellectual property rights’ includes industrial property
rights, know how, copyright and neighbouring rights;
(g) ‘know-how’ means a package of non-patented practical
information, resulting from experience and testing by the supplier, which is cret, substantial and identified: in this context, ‘cret’ means that the know-how is not generally known or easily accessible; ‘substantial’ means that the know-how is significant and uful to the buyer for the u, sale or resale of the contract goods or rvices;
鼻头痣
‘identified’ means that the know-how is described in a sufficiently comprehensive manner so as to make it possible to verify that it fulfils the criteria of crecy and substantiality;
应运而生什么意思
(h) ‘buyer’ includes an undertaking which, under an agreement
falling within Article 101(1) of the Treaty, lls goods or rvices on behalf of another undertaking;
(i) ‘customer of the buyer’ means an undertaking not party to
the agreement which purchas the contract goods or rvices from a buyer which is party to the agreement.
2. For the purpos of this Regulation, the terms ‘undertaking’, ‘supplier’ and ‘buyer’ shall include their respective connected undertakings.
‘Connected undertakings’ means:
(a) undertakings in which a party to the agreement, directly or
indirectly:
(i) has the power to exerci more than half the voting
rights, or
(ii) has the power to appoint more than half the members of the supervisory board, board of management or
bodies legally reprenting the undertaking, or (iii) has the right to manage the undertaking's affairs;
(b) undertakings which directly or indirectly have, over a party
to the agreement, the rights or powers listed in point (a);
(c) undertakings in which an undertaking referred to in point
(b) has, directly or indirectly, the rights or powers listed in
point (a);
(d) undertakings in which a party to the agreement together
with one or more of the undertakings referred to in points (a), (b) or (c), or in which two or more of the latter undertakings, jointly have the rights or powers listed in point (a);
(e) undertakings in which the rights or the powers listed in
point (a) are jointly held by:
(i) parties to the agreement or their respective connected
undertakings referred to in points (a) to (d), or
(ii) one or more of the parties to the agreement or one or more of their connected undertakings referred to in
points (a) to (d) and one or more third parties.
Article 2
Exemption
1. Pursuant to Article 101(3) of the Treaty and subject to the provisions of this Regulation, it is hereby declared that Article 101(1) of the Treaty shall not apply to vertical agreements.
This exemption shall apply to the extent that such agreements contain vertical restraints.
2. The exemption provided for in paragraph 1 shall apply to vertical agreements entered into between an association of undertakings and its members, or between such an association and its suppliers, only if all its members are retailers of goods and if no individual member of the association, together with its connected undertakings, has a total annual turnover exceeding EUR 50 million. Vertical agreements entered into by such associations shall be covered by this Regulation without prejudice to the application of Article 101 of the Treaty to horizontal agreements concluded b
etween the members of the association or decisions adopted by the association.
3. The exemption provided for in paragraph 1 shall apply to vertical agreements containing provisions which relate to the assignment to the buyer or u by the buyer of intellectual property rights, provided that tho provisions do not constitute the primary object of such agreements and are directly related to the u, sale or resale of goods or rvices by the buyer or its customers. The exemption applies on condition that, in relation to the contract goods or rvices, tho provisions do not contain restrictions of competition having the same object as vertical restraints which are not exempted under this Regulation.
4. The exemption provided for in paragraph 1 shall not apply to vertical agreements entered into between competing undertakings. However, it shall apply where competing undertakings enter into a non-reciprocal vertical agreement and:
(a) the supplier is a manufacturer and a distributor of goods,
while the buyer is a distributor and not a competing under
taking at the manufacturing level; or
(b) the supplier is a provider of rvices at veral levels of
trade, while the buyer provides its goods or rvices at the retail level and is not a competing undertaking at the level of trade where it purchas the contract rvices.
5. This Regulation shall not apply to vertical agreements the subject matter of which falls within the scope of any other block exemption regulation, unless otherwi provided for in such a regulation.
Article 3
Market share threshold
1. The exemption provided for in Article 2 shall apply on condition that the market share held by the supplier does not exceed 30 % of the relevant market on which it lls the contract goods or rvices and the market share held by the buyer does not exceed 30 % of the relevant market on which it purchas the contract goods or rvices.
2. For the purpos of paragraph 1, where in a multi party agreement an undertaking buys the contract goods or rvices from one undertaking party to the agreement and lls the contract goods or rvices to another undertaking party to the agreement, the market share of the first undertaking
must respect the market share threshold provided for in that paragraph both as a buyer and a supplier in order for the exemption provided for in Article 2 to apply.
Article 4
Restrictions that remove the benefit of the block exemption — hardcore restrictions
The exemption provided for in Article 2 shall not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object:
(a) the restriction of the buyer's ability to determine its sale
price, without prejudice to the possibility of the supplier to impo a maximum sale price or recommend a sale price, provided that they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties;
(b) the restriction of the territory into which, or of the
customers to whom, a buyer party to the agreement, without prejudice to a restriction on its place of establishment, may ll the contract goods or rvices, except:
(i) the restriction of active sales into the exclusive territory
or to an exclusive customer group rerved to the
supplier or allocated by the supplier to another buyer,
where such a restriction does not limit sales by the
customers of the buyer,
(ii) the restriction of sales to end urs by a buyer operating at the wholesale level of trade,
(iii) the restriction of sales by the members of a lective distribution system to unauthorid distributors within
the territory rerved by the supplier to operate that
system, and
(iv) the restriction of the buyer's ability to ll components, supplied for the purpos of incorporation, to
customers who would u them to manufacture the
same type of goods as tho produced by the supplier;
(c) the restriction of active or passive sales to end urs by
members of a lective distribution system operating at the retail level of trade, without prejudice to the possibility
of prohibiting a member of the system from operating out of an unauthorid place of establishment;
(d) the restriction of cross-supplies between distributors within
a lective distribution system, including between
distributors operating at different level of trade;
(e) the restriction, agreed between a supplier of components
and a buyer who incorporates tho components, of the supplier’s ability to ll the components as spare parts to end-urs or to repairers or other rvice providers not entrusted by the buyer with the
repair or rvicing of its goods.
Article 5
Excluded restrictions
1. The
exemption
provided
for
入党发展对象in
Article
2 shall
not apply
to the following obligations contained in vertical agreements:
(a) any direct or indirect non-compete obligation, the duration
of which is indefinite or exceeds five years;
(b) any direct or indirect obligation causing the buyer, after
termination of the agreement, not to manufacture, purcha, ll or rell goods or rvices;
(c) any direct or indirect obligation causing the members of a
lective distribution system not to ll the brands of particular competing suppliers.
For the purpos of point (a) of the first subparagraph, a non- compete obligation which is tacitly renewable beyond a period of five years shall be deemed to have been concluded for an indefinite duration.
2. By way of derogation from paragraph 1(a), the time limitation of five years shall not apply where the contract goods or rvices are sold by the buyer from premis and land owned by the supplier o
r lead by the supplier from third parties not connected with the buyer, provided that the duration of the non-compete obligation does not exceed the period of occupancy of the premis and land by the buyer.
3. By way of derogation from paragraph 1(b), the exemption
provided for in Article 2 shall apply to any direct or indirect obligation causing the buyer, after termination of the agreement, not to manufacture, purcha, ll or rell goods or rvices where the following conditions are fulfilled:
盲棋
(a) the obligation relates to goods or rvices which compete
with the contract goods or rvices;
(b) the obligation is limited to the premis and land from
which the buyer has operated during the contract period;
(c) the obligation is indispensable to protect know-how trans
ferred by the supplier to the buyer;
(d) the duration of the obligation is limited to a period of one
year after termination of the agreement.
Paragraph 1(b) is without prejudice to the possibility of imposing a restriction which is unlimited in time on the u and disclosure of know-how which has not entered the public domain.
Article 6
Non-application of this Regulation
Pursuant to Article 1a of Regulation No 19/65/EEC, the Commission may by regulation declare that, where parallel networks of similar vertical restraints cover more than 50 % of a relevant market, this Regulation shall not apply to vertical agreements containing specific restraints relating to that market.
Article 7
Application of the market share threshold
For the purpos of applying the market share thresholds provided for in Article 3 the following rules shall apply:
(a) the market share of the supplier shall be calculated on the
basis of market sales value data and the market share of the buyer shall be calculated on the basis of market purcha value data. If market sales value or market purcha value data are not available, estimates bad on other reliable market information, including market sales and purcha volumes, may be ud to establish the market share of the undertaking concerned;
(b) the market shares shall be calculated on the basis of data
relating to the preceding calendar year;
(c) the market share of the supplier shall include any goods or
rvices supplied to vertically integrated distributors for the purpos of sale;
(d) if a market share is initially not more than 30 % but
subquently ris above that level without exceeding 35 %, the exemption provided for in Article 2 shall continue to apply for a period of two concutive calendar years following the year in which the 30 % market share threshold was first exceeded;
温柔的母亲(e) if a market share is initially not more than 30 % but
柚子皮的功效与作用subquently ris above 35 %, the exemption provided for in Article 2 shall continue to apply for one calendar year following the year in which the level of 35 % was first exceeded;
(f) the benefit of points (d) and (e) may not be combined so as
to exceed a period of two calendar years;
(g) the market share held by the undertakings referred to in
point (e) of the cond subparagraph of Article 1(2) shall be apportioned equally to each undertaking having the rights or the powers listed in point (a) of the cond subparagraph of Article 1(2).
Article 8
Application of the turnover threshold
1. For the purpo of calculating total annual turnover within the meaning of Article 2(2), the turnover achieved during the previous financial year by the relevant party to the vertical agreement and the turnover achieved by its connected undertakings in respect of all goods and rvices, excluding all taxes and other duties, shall be added together. For this purpo, no account shall be taken of dealings between the party to the vertical agreement and its connected undertakings or between its connected undertakings.
2. The exemption provided for in Article 2 shall remain applicable where, for any period of two concutive financial years, the total annual turnover threshold is exceeded by no more than 10 %.
