De Minimis Vertical Agreements

Have decisions or guidelines on vertical restrictions, in any way, dealt with restrictions on the territory in which a buyer who sells on the Internet is allowed to resell contract products? If the vertical class exemption is to apply, neither the supplier`s market share nor that of the buyer must exceed 30% of the relevant market for the products concerned. Extending this threshold to buyers` market shares in all cases has significantly reduced the number of vertical agreements that can be protected under the safe port of the category exemption regulation. The main legal basis is Article 101 of the Treaty on the Functioning of the European Union (TFUE). Article 101, paragraph 1, prohibits agreements between companies that are likely to affect trade between EU Member States and which have the purpose or effect of preventing, restricting or distorting competition within the European Union. Article 101, paragraph 2, of the TFUE renders these agreements invalid unless they meet the exemption requirements of Article 101, paragraph 3 (i.e., the economic benefit of an agreement outweighs its anti-competitive effects). Between 2005 and 2014, the CMA/OFT published details of decisions (or other less important enforcement measures) of about two cases of vertical restrictions per year on average. In 2015, the CMA made a decision on Vertical Property Agent Services and closed the investigation with Hotel Online Bookings following the agreement reached by companies in other jurisdictions dealing with practices that were also important to the CMA. The CMA has also published open letters for three markets. In addition, the United Kingdom Railway Board, which is responsible at the same time as the CMA, has made end-of-regime commitments in one case (see question 16).

This focus on RPM continued in 2016, with the publication of a report on vertical restrictions, two CMA decisions in May on tariff restrictions limiting online discounts and the launch in July of a project to track the use of MFN clauses in online hotel booking. The Competition Act 2002 allows the Competition and Consumer Protection Commission (CCPC) to state in writing that a certain category of vertical agreements, decisions or concerted practices is not prohibited by Irish competition law. The purpose of this declaration is to provide interested parties with useful guidance on vertical agreements and to ensure that businesses can benefit from the exemption provided in the declaration. In 2018, the CMA`s vertical restriction enforcement measures have focused on PMRs, including through online restrictions, and other online practices that the CMA considers anti-competitive.

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