How often do agreements and abuse of dominance rules apply to vertical restrictions by the cartel enforcement and abuse of dominance rules? What are the main priorities for vertical restrictions? The Commission closed its investigation after the studios agreed to waive the MFN clauses contained in the existing agreements. The de minimis communication provides that in the absence of certain severe restrictions, such as the setting of resale prices or clauses granting absolute protection to the territorial territory, and in the absence of parallel networks of similar agreements, the Commission will not consider that vertical agreements have a “substantial” effect on competition, provided that the market shares held by the parties for the products concerned do not exceed 15%. Although the de minimis communication is binding on the Commission itself, it is not binding on the courts or competition authorities of the Member States in the application of Article 101, as confirmed by the European Court of Justice (ECJ) in Expedia. The European Commission`s Green Category Exemption Regulation and its guidelines provide a “safe haven” for cartels and abuse of dominance for certain vertical regimes. We are heavily involved in the EC`s ongoing review of the VBER, from the first consultation reaction to participation in a tailor-made workshop on reform. Through its revision, the EC is trying to adapt the safe port of VBER to distribution channels in the internet age. Businesses are demanding more clarity and consistency, especially with regard to online sales rules. The current regulation expires in 2022. Vertical guidelines provide examples of types of internet-related restrictions that are considered a severe restriction on passive sales outside a buyer`s area or customer base (see questions 28 and 29) and therefore prevent the application of the safe port defined in the vertical class exemption. Among these strict restrictions on the internet are the main elements of the EU`s system of regulation of vertical restrictions: in order to help companies and their consultants ensure that their agreements meet the conditions of an “exemption” under Article 101, paragraph 3, the European Commission`s Directorate-General for Competition (Commission) has published two documents particularly important for assessing vertical restrictions. In July 2015, the Commission published a statement of objections to several major US film studios and one of Europe`s largest pay-TV companies, on the grounds that licensing agreements between them hinder the provision of pay-TV services beyond EU borders, both via satellite and the internet.
In July 2016, the Commission agreed to close the investigation into one of the major US film studios, while in December 2016, one of the European pay-TV companies under investigation filed an application before the Tribunal to quash the Commission`s decision (see question 28). It is not clear that a retail clause of the MFN, such as the one described above, would in itself constitute a restriction of competition under section 101, paragraph 1. However, the agreements that were the subject of the Commission`s recent e-book investigation included an MFN retail price, in which publishers agreed to align the prices of titles sold through Apple`s iBookstore with those of the same titles when sold on other online platforms. Although the Commission`s investigation focused more on alleged agreements between the publishers and Apple, the commitments the Commission accepted at the conclusion of the case included the obligation to remove the retail MFN for a period of five years. This aspect of the result of the e-book case suggests that the Commission considered that, for customers, MFNs, as well as other restrictions related to consumer prices, could be likely to restrict competition. Selective distribution systems do not meet these criteria, but are covered