Where the agreement in question may fall under another EU block exemption, the vertical block exemption shall not apply. Other common block exemptions are the motor vehicle block exemption, the technology transfer block exemption, the R&D block exemption and the specialisation agreement block exemption. Molly Donovan: Okay, so we talked about vertical restrictions on prices, but I want to use the rest of our time to talk about vertical restraints outside of prices. If a vertical restraint does not limit the prices that can be calculated, what does it limit? Susannah Torpey: A common type of price-based vertical restraint is what is called resale pricing. Fixed resale prices refer to an agreement between a manufacturer and a distributor or other reseller or an agreement between other resellers in a distribution chain that sets or influences the price at which products are to be sold. This would include situations where the manufacturer or distributor is located in Taiwan and the Taiwanese company agrees with the retailer in the United States on the price at which the products are to be sold. EU competition law contains various block exemptions that exempt certain agreements from the prohibition in Article 101. These block exemptions shall also apply to agreements which may fall within the prohibition laid down in Chapter I. If the agreement contains one of the following hardcore restrictions, the benefit of the vertical block exemption is lost for the entire agreement: Section 1 of the Sherman Antitrust Act governs all vertical restraints affecting interstate trade in the United States. Section 3 of the Clayton Act regulates inter-brand restrictions that include the sale of ”goods.” Finally, section 2 of the Sherman Act regulates restrictions imposed by monopolists. For several decades, the courts have been very hostile to many vertical restraints, declaring them in themselves illegal or almost illegal.

[1] Recently, the courts have changed course and ruled that most of these restrictions should be analyzed according to the rule of reason. [2] The 12. In June 2020, Advocate General Drijber concluded – referring to the appeal in cassation against a judgment of the Hague Court of Appeal – that a settlement agreement on a patent does not infringe competition law. Jet Set and Brielle Industrie Services (”BIS”), both active in the field of oil tank cleaning techniques, had reached a settlement in that case which, according to BIS, contained a non-compete obligation and a non-compete obligation. The BIS considered that this was a licence agreement with hardcore restrictions within the meaning of the Technology Transfer Block Exemption Regulation (Technology Transfer Block Exemption Regulation). However, Advocate General Drijber concluded that this was neither a licence agreement nor a non-compete obligation. The ban on the use of Jet Set`s technology stems directly from the patent on this technology. It is therefore not necessary to review the Block Exemption Regulation or Article 6(3) MW. Although a non-cancellation clause is generally not covered by the Block Exemption Regulation, there was also no such clause in the present case. Bis had in fact (successfully) challenged the patent.

The Supreme Court did not reach a substantive decision. An intellectual property agreement cannot benefit from the block exemption for vertical agreements. However, if the main objective of the agreement is not related to intellectual property, the vertical block exemption may be invoked. Otherwise, a block exemption such as the technology transfer block exemption may apply. Intellectual property provisions in a vertical agreement are a difficult issue in an already complex field and it is necessary to seek the advice of a professional. The rule of reason essentially allows the courts to distinguish between restrictions that have anti-competitive effects and harm the consumer, on the one hand, and restrictions that actually stimulate competition and are in the best interests of the consumer, on the other. Molly Donovan: That is helpful. And I understand from what you`re saying that American Express clarifies to some extent how the rule of reason would apply to vertical restraint, but I also understand that there is still some uncertainty.

So what is the uncertainty that remains? Competition law issues can arise at different levels of the production, supply and distribution chain. However, when they occur may affect the likelihood or severity of anti-competitive provisions. Here we discuss how competition law deals with both vertical agreements and, to a lesser extent, horizontal agreements. A vertical agreement is a term used in competition law to refer to agreements between companies operating at different levels of the production/distribution chain (e.B. relationships between manufacturers and their customers/distributors). Susannah Torpey: I say ”anti-competitive” because vertical restraints can affect competition in different ways. They may increase competition between competitors or restrict competition. Antitrust law focuses on vertical restraints that are anti-competitive because, on the whole, they affect competition more than competition. Provided that they do not contain hardcore restrictions (as defined in the relevant Block Exemption Regulations), a number of vertical agreements may benefit from the protective mantle of block exemptions, thus circumventing the prohibition set out in Article 4. Below is a list of block exemption regulations that may apply, inter alia, to vertical agreements. Depending on the specific circumstances of the case, some of the following rules may or may not apply to vertical agreements: Article 4 of Law No 4054 on the Protection of Competition (the `Competition Law`) prohibits all agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition. Among the above types of chords, vertical chords are the most tested.

Vertical restraints such as resale price maintenance (RPM), most-favoured-nation clauses, exclusive distribution agreements, rebate schemes, non-compete obligations and reverse non-compete obligations have often proved their worth in the history of Turkish competition law. Article 101(1) TFEU prohibits agreements between undertakings which have as their object or effect the restriction, prevention or distortion of competition within the EU and which affect trade between EU Member States[3]. This prohibition applies to all agreements between two or more undertakings, whether competing or not. The European Commission has published guidelines on vertical restraints to determine when an agreement should be exempted from the prohibitions in Chapter I or Article 101. In general, vertical restraints are less likely to be anti-competitive than horizontal restraints. Vertical agreements which fulfil the conditions for exemption and do not contain `hardcore restrictions` of competition are exempted by Regulation (EU) No 330/2010 [4] from the prohibition laid down in Article 101(1) TFEU. The main exception concerns motor vehicle distribution agreements which are subject to Regulation (EC) No 1400/2002 [5] until 31 May 2013 in accordance with a three-year extension granted by Regulation (EU) No 461/2010. [6] Although the latter Regulation amends Regulation (EU) No 330/2010 by 1. June 2013 applied to agreements on motor vehicle repair and spare parts distribution, it also complements Regulation 330 with three additional ”fundamental clauses” There was even uncertainty as to when the rule of reason applies….