Certain requirements must be met before a particular vertical agreement is exempted from Article 101, paragraph 1:3. The exemption in paragraph 1 applies to vertical agreements that contain provisions relating to the transfer of intellectual property rights to the purchaser or the use of intellectual property rights, provided that these provisions are not the primary purpose of these agreements and are directly related to their use. , the sale or resale of goods or services by the buyer or his customers. The exemption applies provided that these provisions do not contain, for contractual goods or services, competition restrictions with the same purpose as vertical restrictions that are not exempt under this Regulation. The evaluation showed that the VBER and vertical restriction guidelines remain relevant, as they are useful instruments that greatly facilitate the self-assessment of vertical agreements and help reduce compliance costs for companies that enter into such agreements. 1. In calculating the overall annual turnover covered by Article 2, paragraph 2, the turnover achieved by the stakeholder in the vertical agreement in the previous year and the turnover achieved by its related companies for all goods and services, excluding taxes and other taxes, are added together. To this end, the relationship between the party to the vertical agreement and its related companies, or between its related companies, is not taken into account. The regulation provides for a class exemption from Section 101, paragraph 1, of the TFUE for vertical agreements that meet certain requirements. These agreements may, for example, help a manufacturer open a new market or prevent a distributor from « driving freely » on the advertising efforts of another distributor, or allowing a supplier to devalue an investment for a given customer.
Article 101, paragraph 1 of the TFUE prohibits agreements that may affect trade between EU member states and which prevent, restrict or distort competition. However, agreements that have sufficient benefits to outweigh the anti-competitive effects are exempt from this prohibition under Article 101, paragraph 3, of the EUTS. The likelihood that such efficiency-enhancing effects will predominate anti-competitive effects due to restrictions in vertical agreements depends on the degree of market power of the parties to the agreement and, therefore, on the exposure of these firms to competition from other suppliers of goods or services considered by their customers to be interchangeable or substitutable because of the characteristics of the products. their prices and their destination. The benefit of the category exemption instituted by this Regulation should be limited to vertical agreements that can be considered with sufficient certainty that they meet the conditions of Article 101, paragraph 3 of the Treaty. Certain types of vertical agreements can improve economic efficiency within a production or distribution chain by facilitating better coordination between the parties. In particular, they can lead to a reduction in the costs of transaction and distribution of the parties and to the optimization of their level of turnover and investment. Beyond the 30% market share threshold, vertical agreements within the scope of Article 101, paragraph 1 of the Treaty, cannot generally result in objective advantages in this sense and in their size, in order to compensate for the disadvantages they cause for competition.