Notice On A Block Exemption For Certain Categories Of Specialisation Agreements

Original Language Title: Bekendtgørelse om gruppefritagelse for visse kategorier af specialiseringsaftaler

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Overview (table of contents) Annex 1 The full text of the ordonnance on block exemption for certain categories of specialisation agreements

Pursuant to § 10 of the Competition Act, see. lovbekendtgørelse nr. 972 by 13. August 2010, fixed: § 1. The Danish text of the Commission Regulation (EU) No. 1218/2010 of 14. December 2010 on the application of article 101, paragraph 3, of the Treaty on the functioning of the European Union on certain categories of specialisation agreements shall apply mutatis mutandis to the agreements and concerted practices within the scope of the Competition Act, section 6, paragraph 1, of the basic regulation. (3). However, articles 6 and 7 of the regulation shall not apply.

(2). The regulation is reprinted as annex to this order.

§ 2. All references in the regulation to ' article 101, paragraph 1 ' shall be construed as a reference to ' article 6 Competition Act, paragraph 1, of the basic regulation. (3) ', and all references to ' this Treaty article 101, paragraph 3 ' shall be construed as a reference to ' the Competition Act § 8, paragraph 1 '.

§ 3. The competition Council may withdraw this order, if the Council finds in a particular case that an agreement, which is covered by the exemption provided for in this Decree, nevertheless has effects which are incompatible with the conditions laid down in section 8, paragraph 1, and in particular where the relevant market is highly concentrated, and the competition is already modest, particularly due to other participants in the respective market positions or connections with other market participants as a result of parallel specialisation agreements.

§ 4. The prohibition set out in section 6 of the Competition Act, paragraph 1 shall not apply during the period from the 1. January 2011 to the 31. December 2012 for agreements that were already in force on 31 December 1992; December 2010, and which do not satisfy the conditions for exemption under this order, but as the 31. December 2010 met the conditions for exemption under the Ministry of economic and business Minister Decree No. 1211 by 18. December 2000, as amended by Decree No. 483 of 15. June 2005.

§ 5. This Ordinance shall enter into force on the 1. February 2011.

(2). Executive Order No. 1211 by 18. December 2000 on block exemption for categories of specialisation agreements are hereby repealed.

Economic and business affairs, the 28. January 2011 Brian M/Havskov Benedikte Hansen



Annex 1 Commission Regulation (EU) No. 1218/2010 of 14. December 2010 on the application of article 101, paragraph 3, of the Treaty on the functioning of the European Union on certain categories of specialisation agreements (text with EEA relevance)

THE EUROPEAN COMMISSION HAS —

having regard to the Treaty on the functioning of the European Union,

having regard to Council Regulation (EEC) No 2377/90. 2821/71 of 20. December 1971 on the application of the provisions of article 85 (3) of the Treaty to categories of agreements, decisions and concerted combined with),

After the publication of a draft of this regulation,

after consultation of the Advisory Committee on restrictive practices and dominant positions,

on the basis of the following considerations:

(1) pursuant to Regulation (EEC) No 2377/90. 2821/71, the Commission may, by regulation, apply article 101, paragraph 3, of the Treaty on European Union2) on certain of those of article 101, paragraph 1, included the categories of agreements, decisions and concerted practices regarding specialisation, including agreements necessary for the implementation of the specialisations.

(2) Commission Regulation (EC) No 1782/2003. 2658/2000 of 29. November 2000 on the application of article 81 (3) of the Treaty to categories of specialiseringsaftaler3) defines categories of specialisation agreements, which the Commission regarded as normal to meeting the conditions laid down in article 101 (3) of the Treaty. In view of the global positive experiences with the application of the said regulation, which expires on 31 December 2006. December 2010, and having regard to the experience gained since its issuance, should be adopted a new block exemption regulation.

(3) this regulation should both ensure the effective protection of competition and create adequate legal certainty for companies. By the achievement of these objectives should take account of the need to simplify administrative supervision and the legislative framework as far as possible. For specialisation agreements between parties who do not attain a certain market power, it can with regard to the application of article 101, paragraph 3, in General, be presumed that the positive effects of the agreements will outweigh any negative effects on competition.

(4) For the application of article 101, paragraph 3, by regulation, it is not necessary to define which agreements that may fall under article 101, paragraph 1. In the individual assessment of agreements under article 101, paragraph 1, must be taken into account many factors, in particular the market structure on the relevant market.

(5) the application of the exemption provided for in this regulation should be limited to those agreements that can be assumed with sufficient certainty that they satisfy the conditions of article 101, paragraph 3.

(6) agreements on specialization in production will most likely contribute to improving the production or distribution of goods, if the parties have complementary skills, assets or activities and thus can concentrate on the manufacture of certain products and thus operate more rationally and offer goods at lower prices. The same is true also for specialisation agreements concerning normal preparation services. When there is effective competition, it is to be expected that consumers receive a fair share of the resulting benefits.

(7) such advantages can be achieved by agreements, where one of the parties completely or partially renounce to manufacture certain products or prepare for certain services in favour of another party ("unilateral specialisation"), agreements in which each Party completely or partially renounce to manufacture certain products or prepare for certain services in favour of another party (' mutual specialisation '), and agreements where the parties undertake to manufacture certain products or prepare for certain services in the Community (' joint production "). For the purposes of this regulation, the concepts of unilateral and reciprocal specialisation does not require that a party reduces its capacity, since it is sufficient that they reduce their production volumes. The concept of joint production requires, however, that each party lowers their production activities that fall outside the scope of their planned joint production scheme.

(8) the very nature of unilateral and reciprocal specialisation agreements presupposes that the parties are active on the same product market. It is not necessary that the parties are active in the same geographic market. This Regulation shall apply to agreements concerning unilateral specialization and reciprocal specialisation should therefore only apply to situations where the parties are active on the same product market. Joint production agreements can be concluded by the parties, which are already active on the same product market, but also of the parties wishing to gain access to a product market by means of the agreement. This regulation should therefore include agreements on joint production, regardless of whether the parties are already active on the same product market.

(9) in order to ensure that the benefits of specialization can be achieved without a party completely leaving a future generation than production, unilateral and reciprocal specialisation agreements should only be subject to this regulation, when they contain obligations for the supply and procurement or joint distribution. Supply and purchase obligations can, but should not be exclusive.

(10) When the parties ' market share on the relevant market for the products which are the subject of a specialisation agreement, does not exceed a certain level, will such agreements usually involve economic benefits in terms of economies of scale, efficiencies or better production technologies, while at the same time allows consumers a fair share of the resulting benefits. Where the products are manufactured in accordance with a specialisation agreement, however, are intermediate products, of which one or more of the parties in whole or in part uses internally for the manufacture of products in the downstream, which they then sell on the market, should the exemption under this regulation also depend on whether the parties ' market share on the relevant market for these products in downstream does not exceed a specified level. If only the parties ' market share on the market for the intermediate products were taken into account, would that in such cases will not be taken into account for the risk of foreclosure or price increases for its competitors ' input in downstream. However, there is no presumption that specialisation agreements either covered by article 101, paragraph 1, or do not meet the conditions laid down in article 101, paragraph 3, once the market share thresholds provided for in this regulation are exceeded, or other conditions laid down in this regulation have not been fulfilled. In such cases, there should be an individual assessment of the specialisation agreement on the basis of article 101 of the Treaty.
(11) This regulation should not exempt agreements containing restrictions which are not indispensable to attain the positive effects of an agreement on specialization. Agreements containing certain types of severely anti-competitive restraints in connection with the fixing of prices in relation to third parties, limitation of output or sales and sharing of markets or customers, should in principle be excluded from that could fall under the exemption under this regulation, regardless of the size of the parties ' market share.

(12) the limitation of market shares, the non-exemption of certain agreements and the conditions provided for in this regulation normally ensure that the agreements, which are covered by the block exemption applies do not enable the parties to eliminate competition in respect of a substantial part of the relevant products or services.

(13) the Commission may, in accordance with article 29, paragraph 1, of Council Regulation (EC) No 1782/2003. 1/2003 of 16. December 2002 on the implementation of the competition rules under article 81 of the Treaty and 824) not to apply this regulation if it finds in a particular case that an agreement, which is covered by the exemption provided for in this Regulation nevertheless have effects which are incompatible with the conditions laid down in article 101 (3) of the Treaty.

(14) Member States ' competition authorities may, in accordance with article 29, paragraph 2, of Regulation (EC) No 1782/2003. 1/2003, involve exemption from this regulation for their territory or part thereof when an agreement that the exemption provided for in this Regulation applies in a particular case nevertheless has effects which are incompatible with article 101, paragraph 3, on the territory of the Member State concerned or a part thereof, and this area affords all the for a separate geographical market characteristics.

(15) the exemption under this regulation, in accordance with article 29 of Regulation (EC) No 1782/2003. 1/2003 involved, URf.eks. where the relevant market is highly concentrated, and the competition is already modest, in particular due to other participants in the respective market positions or connections with other market participants as a result of parallel specialisation agreements.

(16) in order to facilitate the conclusion of specialisation agreements, which might have structural implications for the parties, the period of validity of this regulation should be fixed at 12 years –

HAS ADOPTED THIS REGULATION:

Article 1

Definitions

1. for the purposes of this Regulation: (a)) ' specialisation agreement ' means a unilateral specialisation agreement, a reciprocal specialisation agreement or a joint production agreement



(b) unilateral specialisation agreement «»): an agreement between two parties that are active on the same product market, by virtue of which one party agrees fully or partially cease to produce certain products or refrain from producing those products, but purchase them from the other party who agrees to produce and deliver these products



c) ' mutual specialisation agreement ' means an agreement between two or more parties that are active on the same product market, whereby two or more parties on mutual show agrees fully or partially cease to produce certain products or refrain from producing certain, but other products, but buying such with the other parties, who agrees to produce and deliver these products



(d)) ' joint production agreement ' means an agreement whereby two or more parties agree to produce certain products jointly



e) ' agreement ' means an agreement, a decision of an Association of undertakings or a concerted practice



f) ' product ' means a product or service, including both intermediary goods or services as finished products or services, but not distribution and rental services



g) ' production ' shall mean the production of goods or services, including preparation of manufacture in subcontracting



h)» preparation of services ' means activities in previous levels of trade with a view to the provision of services to customers



in) ' relevant market ': the relevant product market and geographical market specialisation products, in addition, if specialisation products are intermediate products, of which one or more of the parties in whole or in part uses internally for the manufacture of products in the downstream, the relevant product market and the geographic market for the products in the downstream



j)» specialisation products ' shall mean products covered by the specialisation agreement



k) ' downstream ' products in: products, as they are used for the specialization of one or more of the parties as a component, which are marketed by these parties in the market



l) ' competing undertaking "means an actual or potential competitor



m)» actually competitor ' means an undertaking which is active on the same relevant market



n)» potential competitor ' means an undertaking, which aside from specialisation agreement on a realistic basis and not just as a theoretical possibility in the event of a small but permanent increase in relative prices of less than three years would be able to undertake the necessary additional investments or other necessary switching costs and thus occur in the relevant market



o) ' exclusive supply obligation ' means any obligation not to supply the product to another competing business specialisation than a Contracting Party



p)» exclusive purchase obligation "means an obligation only to buy the product at a specialisation agreement party



q) ' joint ' in connection with the distribution, when the parties:



I) performs the distribution of the products with a common distribution team, unit or company, or



II) appoints a third party distributor, with exclusive rights or not, provided that such third party is not a competing undertaking



r) ' distribution ': include the sale of goods and supply of services.

2. for the purpose of this regulation includes the terms ' establishment ' and ' Party ', as well their respective connected undertakings.

' Connected undertakings ' means: a) undertakings in which a party in specialisation agreement, directly or indirectly:



I) has the power to exercise more than half of the voting rights



II) can appoint more than half of the members of the Management Board, the Executive Board or other bodies that represent the company in legal terms, or



III) has the right to manage the undertakings ' Affairs



b) undertakings which directly or indirectly have the rights referred to in (a)) or the powers of one of the parties to the specialisation agreement



c) undertakings in which one of the undertakings referred to in point (b)), directly or indirectly, in subparagraph (a)) referred to the rights or powers



d) undertakings in which a party in specialisation agreement together with one or more of the undertakings referred to in point (a)), (b)) or (c)), in subparagraph (a)) referred to the rights or powers, or in which two or more of the latter undertakings, jointly have the in point (a)) referred to the rights or powers



e) undertakings in which the rights referred to in (a)) or powers held jointly by:



I) parties to the specialisation agreement or their respective connected undertakings referred to in point (a))-d), or



II) one or more parties in the specialisation agreement or one or more of their connected undertakings referred to in article 6. ) (a)-(d)), and one or more third parties.

Article 2

Exemption

1. In accordance with article 101, paragraph 3, and without prejudice to the provisions of this Regulation shall be declared under article 101, paragraph 1, hereby apply to specialisation agreements.

This exemption shall apply, in so far as such agreements contain restrictions of competition falling within the scope of article 101, paragraph 1.

2. The exemption provided for in paragraph 1 shall apply to specialisation agreements, which contain provisions on the assignment or licensing of intellectual property rights to one or more of the parties, provided that such provisions do not constitute the primary object of such agreements, but are directly related to and necessary for their implementation.

3. The exemption provided for in paragraph 1 shall apply to specialisation agreements, when: (a)) the parties undertake an exclusive purchase or an exclusive supply obligation, or



(b)) the parties do not separately sells specialisation products but make joint distribution of the products.

Article 3

Market share threshold

The exemption provided for in article 2 shall apply on condition that the parties do not have a combined market share in excess of 20% of any relevant market.

Article 4

Severely anti-competitive restraints

The exemption provided for in article 2 shall not apply to specialisation agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have any of the following purposes: a) the fixing of prices when selling products to third parties with the exception of the fixing of prices for direct customers in the context of joint distribution



b) the limitation of output or sales, with the exception of:



I) provisions on the agreed amount of products in the context of unilateral or reciprocal specialisation agreements or the setting of capacity and the production scale in connection with joint production agreements, and



II) setting of sales targets in the context of joint distribution



c) share markets or customers.

Article 5

Applying the market share threshold
For the purposes of applying the market share threshold provided for in article 3 the following rules shall apply: (a)) the market share shall be calculated on the basis of turnover on the market. There is no information on the turnover in the market, can the parties ' market share is calculated on a flat-rate based on other reliable market information, including market sales volumes



(b)) the market share shall be calculated on the basis of information relating to the preceding calendar year



(c)) the market share of the undertakings referred to in article 1, paragraph 2, second subparagraph, point (e)), shall be distributed equally among each of the companies that have the rights and powers listed in point (a)) in this section



d) if the market share referred to in article 3 is initially not more than 20% but subsequently exceeds this limit, without, however, exceeding 25%, the exemption provided for in article 2 remains in two consecutive calendar years following the year in which the 20% threshold was first exceeded;



e) if the market share referred to in article 3 is initially not more than 20% but subsequently exceeds 25%, the exemption provided for in article 2 remains in a calendar year after the year in which the 25% threshold was first exceeded;



(f))) (d) and (e)) can not be combined, so that a period of two calendar years is exceeded.

Article 6

Transitional period

In the period from the 1. January 2011 to the 31. December 2012 will find the prohibition laid down in article 101 of the Treaty, paragraph 1 shall not apply to agreements already in force on 31 December 1992; December 2010, and which do not satisfy the conditions for exemption under this regulation but fulfils the conditions for exemption under Regulation (EC) No 1782/2003. 2658/2000.

Article 7

Period of validity

This Regulation shall enter into force on 1 January. January 2011.

It shall expire on 31 December 2005. December 2022.

This regulation is binding in its entirety and directly applicable in each Member State.

Done at Brussels, 14. December 2010.

On behalf of the Commission

José Manuel Barroso

President Official notes 1) OJ L 285 of 29.12.1971, p. 46.

2) With effect from 1 January. December 2009 is article 81 of the EC Treaty has become article 101 of the Treaty on the functioning of the European Union (TFEU). The two articles are essentially identical. In this regulation, references to article 101 of the TFEU be read as references to the article 81 of the EC Treaty, where it is relevant. TFEU also introduced certain changes in terminology, such as the replacement of the ' Community ' with ' Union ', and ' common market ' with ' internal market '. The terminology of the TFEU will be used throughout this regulation.

3 OJ L 304 of 5.12.2000), p. 3.

OJ L 1 of 4.1.2003) 4, p. 1.