Completion of the Block Exemption Regulation for certain categories of specialisation agreements
In accordance with section 10 of the competition law, cf. Law Order no. 972 of 13. August 2010 shall be :
§ 1. The Danish text of the Commission Regulation (EU) No 1218/2010 of 14. In December 2010, the application of Article 101 (1) shall apply. Paragraph 3 of the Treaty on the Functioning of the European Union by means of certain categories of specialisation agreements shall apply by analoging to agreements and concerted practices in the section 6 (6) of the competition. 1, cf. paragraph However, Articles 6 and 7 of the Regulation shall not apply.
Paragraph 2. The Regulation shall be listed in Annex to this notice.
§ 2. All references of the Regulation to Article 101 (1) of the Treaty. 1 " shall be understood as a reference to the section 6 (6) of the competition. 1, cf. paragraph 3 ` and all references to Article 101 (1) of the Treaty ; 3 " shall be understood as a reference to the section 8 of the competition law. 1 '.
§ 3. Competitions may involve this notice, provided that the Council finds that an agreement covered by the exemption under this notice shall nevertheless have effects which are incompatible with the conditions laid down in Article 8 (8). 1, and in particular where the relevant market is highly concentrated and competition is already being modest, in particular due to the respective market positions or relations of other market participants as a result of parallel markets ; Specialization agreements.
§ 4. The tender in the section 6 of the competition law. Paragraph 1 shall not apply to the period from 1. January, 2011 to the 31 st. December 2012 for agreements that were already in force on 31. In December 2010, which does not fulfil the conditions for exemption from this notice, but as the 31. In December 2010, the conditions for exemption from the economic and commercial ministerial order are fulfilled. 1211 of 18. In December 2000, as amended by Notice No 483 by 15. June 2005.
§ 5. This notice shall enter into force on 1. February, 2011.
Paragraph 2. Publication no. 1211 of 18. In December 2000, the Block Exemption Regulation for categories of specialisation agreements is hereby repealed.
The Ministry of Economic and Business, the 28th. January, 2011
/ Benedikte Havskov Hansen
Commission Regulation (EU) No 1218/2010 of 14. In December 2010, the application of Article 101 (1) shall apply. 3, in the Treaty on the Functioning of the European Union by certain categories of specialisation agreements (Text with EEA relevance)
THE EUROPEAN COMMISSION HAS-
Having regard to the Treaty establishing the Functioning of the European Union,
Having regard to Council Regulation (EEC) No, 2821/71 of 20. In December 1971, application of the provisions of Article 85 (3) of the Treaty. 3, subject to the categories of agreements, decisions and concerted practices ; 1) ,
after publication of a draft of this Regulation,
After consulting the Advisory Committee on Cartel and Monopoles, and
in the following considerations :
(1) According to Regulation (EEC) No 2, Article 101 (1) of the Regulation shall apply to 2821/71. 3, in the Treaty on the Functioning of the European Union ; 2) on some of the provisions of Article 101 (1) of the Treaty ; 1, included categories of agreements, decisions and concerted practices relating to specialisation, including on agreements necessary for the implementation of the specialisation.
(2) Commission Regulation (EC) No, 2658/2000 by 29. of the application of Article 81 (2) of the Treaty. 3, on categories of specialisation agreements 3) define categories of specialisation agreements, which the Commission is normally considered to satisfy in accordance with the conditions laid down in Article 101 (1) of the Treaty. 3. In view of the global positive experience of the application of this Regulation, which expires on 31. In the light of the experience gained since its issue, a new block exemption regulation should be adopted.
(3) This Regulation should guarantee effective protection of competition and provide adequate legal certainty for businesses. In the realisation of these objectives, consideration should be given to the need to simplify administrative checks and regulatory frameworks as far as possible. In the case of specialisation agreements between parties which do not reach a certain level of the market, it may in the application of Article 101 (1) of the Treaty. 3, generally accepted that the positive effects of the agreements will offset any negative effects on competition.
(4) For the purposes of Article 101 (1) of the Treaty, The provisions of Article 101 (3) of the Treaty do not need to be defined by Regulation. 1. In the individual assessment of contracts pursuant to Article 101 (1) of the Treaty, 1, account must be taken of many factors, in particular on the market structure of the relevant market.
(5) The application of the exemption provided for in this Regulation should be limited to the agreements with sufficient certainty to satisfy the conditions laid down in Article 101 (1) of the Treaty. 3.
(6) Specialisation of the production of specialisation in production will most likely contribute to the improvement of production or distribution of the goods if the parties have complementary competencies, assets or activities, thereby concentrating on the production of goods ; the manufacture of certain goods and, therefore, to work more rationally and to offer the goods at lower prices. The same also applies to specialisation agreements in the field of the preparation of services. Where effective competition is provided, it is to be expected that consumers will receive a fair share of the benefits associated with it.
(7) Such benefits may be obtained by agreements where either of the parties wholly or partly renounces the production of certain products or preparation of certain services in favour of another Party ("one-sided specialisation"), agreements where each side in whole or in part, renouncing the production of certain products or preparations for certain services in favour of another Party ("mutual specialisation"), and agreements where the parties undertake to manufacture certain products ; or prepare specific services jointly ("joint production"). As far as this Regulation is concerned, the concepts of unilateral and reciprocal specialisation shall not require a party to reduce its capacity, as it is sufficient to reduce their production quantities. However, the concept of common production does not require the parties to reduce their production activities, in particular, to fall outside the scope of their planned common production arrangements.
(8) The very nature of unilateral and reciprocal specialisation agreements presupts that the parties are active on the same product market. It is not necessary for the parties to be active in the same geographic market. The application of this Regulation to agreements on one-sided specialisation and reciprocal specialisation should therefore only apply to situations where the parties are active on the same product market. Common production agreements may be concluded by parties which are already active on the same product market, but also by 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 specialisation can be achieved without leaving one of the parties completely out of a later part than the production deletion, the unilateral and reciprocal specialisation agreements should be covered by this Regulation only when they contain obligations ; on delivery and purchasing or shared distribution. Delivery and procurement obligations may, but shall not, be exclusive.
(10) When the market share of the Parties to the relevant market for products subject to a specialisation agreement does not exceed a specific level, such agreements would normally involve economic benefits in the form of economies of scale. efficiency gains or improved production technology, whilst ensuring that consumers are reasonably involved in the benefits associated with it. However, where the products obtained under a specialisation agreement are intermediate products, as one or more of the Parties, in whole or in part, are used internally for the manufacture of products in subsequent stages of turnover which they have been made ; then market seller, the exemption provided for in this Regulation shall also depend on whether the market share of the parties to the relevant market in respect of these products does not exceed a given level. In the event that only the market share of the Parties to the market for intermediate products was taken into account, no account would be taken of the risks of foreclosure or price increases for the input of the competitives in subsequent events ; caret slain. However, there is no question of the fact that specialisation agreements are either covered by Article 101 (1) of the Treaty. Paragraph 1 shall not satisfy the conditions laid down in Article 101 (1) of the Treaty ; 3 when the market share thresholds provided for in this Regulation have been exceeded or other conditions laid down in this Regulation have not been met. In such cases, an individual evaluation of the specialisation agreement should be carried out on the basis of Article 101 of the Treaty.
(11) This Regulation should not exempt agreements containing restrictions which are not necessary in order to obtain the positive effects of an agreement on specialisation. Agreements containing certain types of serious restrictions of competition in relation to the fixing of prices against third parties, restricting production or selling and splitting up markets or customers should, in principle, be excluded from the principle of : be able to fall within the exemption under this Regulation, irrespective of the size of the market share of the Parties.
(12) Limitation of market share, the non-exemption of certain agreements and the conditions laid down in this Regulation shall normally ensure that contracts covered by the exemption from the Block Exemption Regulation do not allow the parties to exclude competition from one another ; significant part of the products or services concerned.
(13) The Commission may, pursuant to Article 29 (2), Paragraph 1 of the Council Regulation (EC) No 2, 1/2003 of 16. December 2002 on the implementation of the competition rules in Articles 81 and 82 of the Treaty 4) refrain from applying this Regulation if, in a specific case, it establishes that an agreement covered by the exemption provided for in this Regulation shall nevertheless have effects which are incompatible with the conditions laid down in Article 101 (1) of the Treaty. 3.
(14) The competition authorities of the Member States may, pursuant to Article 29 (2), may be adopted. paragraph 2 of Regulation (EC) No 2, 1/2003 the exemption of this Regulation for their territory or part thereof when an agreement which the exemption in this Regulation applies, in a specific case, has effects which are incompatible with Article 101 (1) of the Treaty. In the territory of the Member State concerned, or part thereof, all of the characteristics of a separate geographical market shall be provided.
(15) The exemption provided for in Article 29 of this Regulation shall be in accordance with Article 29 of Regulation (EC) No 2. 1/2003 is included, for example where the relevant market is very concentrated and competition is already being modest, in particular, because of the respective market positions or relations of other market participants, as a result of parallel markets ; Specialization agreements.
(16) In order to facilitate the conclusion of specialisation agreements, which may have structural consequences for the parties, the period of validity of this Regulation should be set at 12 years ;
ENCLOSED THIS REGULATION :
1. For the purposes of this Regulation :
a) ' specialisation agreement ` shall mean a one-sided specialisation agreement, a reciprocal specialisation agreement or a joint production agreement ;
b) ' unilateral specialisation agreement ` shall mean an agreement between two parties which are active on the same product market by which a party acquisitions in full or in part to cease production of certain products or to refuse production of such products, but to buy them ; in the case of the other party consengating to produce and supply these products ;
c) mutual specialisation agreement means an agreement between two or more parties active on the same product market, whereby two or more parties mutually agree in whole or in part to end the production of certain products or from the other parties ; to produce certain products, but other products, but to the other parties, who agree to produce and supply these products ;
d) ' joint production agreement ` shall mean an agreement whereby two or more parties agree to produce certain products collectively ;
(e) ' Agreement ` shall mean an agreement, a decision within the association of undertakings or a concerted practice ;
(f) ' product ` shall mean an item or service, including both intermediate products or services, as finished products or services, but not distribution and rental services ;
g) ' production ` shall mean the manufacture of goods or preparation of services, including the production of subcontracting ;
(h) ' preparation of services ` means activities of previous marketing stages for the provision of services to customers ;
i) ' relevant market ` means the relevant product market and geographic market for specialisation products, to which the products are intermediate products, as one or more of the parties, as one or more of the parties, internally or partially ; manufacture of products in subsequent marketing stages, the relevant product market and geographic market for the products in subsequent marketing stages ;
j) ' specialization products ' means the products covered by the specialisation agreement ;
c) ' products of subsequent marketing stages ` shall mean products used by the specialisation products to one or more of the parties as a component and marketed by these parties on the market ;
I) " competing establishment " means an actual or potential competitor ;
m) ' actual competition ` means a company active in the same relevant market ;
n) ' potential competition ` shall mean an establishment which the specialisation agreement on a realistic basis and not just as a theoretical possibility in the case of a small but lasting increase in the relative prices of less than three years may be carried out ; additional investment or other necessary conversion costs and, in so doing, to enter into the relevant market ;
o) ' exclusive supply obligation ` shall mean an obligation not to provide the specialisation product to another competitive undertaking other than a contract party ;
p) ' Exclusive purchasing obligation ` shall mean an obligation to purchase only the specialisation product in a contract party to the specialist ;
q) "shared" in the case of distribution when the Parties :
i) perform the distribution of the products with a common distribution team, unit or company, or
(ii) the name of a third party as the distributor, with exclusive rights or not, provided that such third party is not a competitive undertaking ;
r) ' distribution ` shall mean the sale of goods and the provision of services.
2. In this Regulation, the terms ' establishment ' and ' party ` include their respective connected undertakings.
' Connected undertakings ` means :
a) undertakings in which one of the parties in the specialisation agreement is directly or indirectly ;
i) can exercise more than half of the voting rights,
(ii) may designate more than half of the members of the Management Board, the Governing Board or other bodies representing the undertaking in legal terms, or
(iii) has the right to lead the business operations,
b) any undertaking which directly or indirectly has the rights or powers referred to in (a) to one of the parties in the specialisation agreement ;
c) undertakings in which one of the undertakings referred to in (b) directly or indirectly has the rights or powers referred to in (a) ;
d) undertakings in which, together with one or more of the undertakings referred to in subparagraphs (a), (b) or (c), the rights or powers referred to in (a) or in which two or more of the latter are subject to the specialisation agreement, together with one or more of the undertakings referred to in (a), (a) or in Community undertakings shall have the rights or powers listed in (a) ;
(e) undertakings in which the rights or powers referred to in (a) are jointly jointly by :
i) parties to the specialisation agreement or their respective connected undertakings referred to in (a) to (d), or
(ii) one or more parties to the Specisation Agreement or one or more of their connected undertakings, cf. (a) to (d) and one or more third parties.
Article 101 (1) of the Treaty. 3, and subject to the provisions of this Regulation, Article 101 (1) of the Treaty shall be declared to be the case. 1, hereby reusable in the use of specialisation agreements.
This exemption shall apply in so far as these agreements contain restrictions on competition which fall within the meaning of Article 101 (1) of the Treaty. 1.
2. The exemption provided for in paragraph 1. Paragraph 1 shall apply to specialisation agreements containing provisions relating to the transfer of or granting licences to intellectual property rights to one or more of the parties, provided that such provisions do not constitute the main purpose of : such agreements, but are directly linked to and necessary for their implementation.
3. The exemption provided for in paragraph 1. Paragraph 1 shall apply to specialisation agreements where :
a) the parties undertake an exclusive purchasing or exclusive supply obligation ; or
b) The parties shall not individually sell specialisation products, but perform the joint distribution of the products.
Market share threshold
The exemption provided for in Article 2 shall apply, provided that the Parties combined do not have a market share exceeding 20% of any relevant market.
Serious Competition Restrictions
The exemption provided for in Article 2 shall not apply to specialisation agreements which, directly or indirectly, directly or indirectly, or in combination with other factors to which the parties have a decisive influence, have any of the following purposes :
a) lay prices on the sale of products to a third party, with the exception of the fixing of prices for direct customers in the context of joint distribution ;
b) restrict the production or sale, with the exception of :
i) provisions relating to the contracted quantity of products in the case of unilateral or reciprocal specialisation agreements or the fixing of capacity and production scope in the case of joint production agreements ; and
(ii) the fixing of sales objectives in the context of joint distribution ;
c) sharing markets or customers.
Application of the market share threshold
For the purpose of applying the market share threshold laid down in Article 3 :
a) the market share shall be calculated on the basis of market turnover. Where no information on the market is available, the market share of the Parties may be calculated on the basis of other reliable market information, including sales volume on the market,
b) the market share shall be calculated on the basis of information relating to the preceding calendar year,
c) the market share of establishments referred to in Article 1 (1). The second subparagraph (e) of the second subparagraph shall be divided between each of the undertakings with the rights and powers listed in (a) of this Title ;
d) if the market share referred to in Article 3 above is not more than 20% but subsequently exceeds this limit, without exceeding 25%, the exemption provided for in Article 2 shall continue to apply in two consecutive calendar years after the year in which : the 20% threshold was exceeded,
(e) if the market share referred to in Article 3 above is not more than 20% but subsequently exceeds 25%, the exemption provided for in Article 2 shall continue to apply in a calendar year after the first year of the threshold of the threshold of 25% ;
(f) (d) and (e) cannot be combined so that a period of two calendar years is exceeded.
During the period from 1. January, 2011 to the 31 st. In December 2012, the ban in Article 101 (1) of the Treaty is Paragraph 1 shall not apply to agreements which were already in force on 31. In December 2010 and which do not fulfil the conditions for exemption under this Regulation, but satisfies the conditions for exemption from Regulation (EC) No 2 ; 2658/2000.
Period of validity
This Regulation shall enter into force on 1. January, 2011.
It expires on the 31. December 2022.
This Regulation shall be binding in all its details and directly applicable in each Member State.
Done at Brussels, 14. December 2010.
For the Commission
José Manuel Barroso
1) OJ L 285, 29.12.1971, p. 46.
2) With effect from 1. In December 2009, Article 81 of the EC Treaty has turned into Article 101 of the Treaty on the Functioning of the European Union (TFEU). The two articles are essentially identical. For the purposes of this Regulation, references to Article 101 of the TFEU shall be construed as references to Article 81 of the EC Treaty, where appropriate. The TFEU also introduced certain changes in the terminology, such as the replacement of 'Community' with 'Union', and 'common market' with the 'internal market'. The TFEU terminology will be used in the whole of this regulation.
3) OJ L 304, 5.12.2000, p. 3.
4) OJ L 1, 4.1.2003, p. 1.