Unless excluded for the reasons set out below, the new exemption applies to all agreements "between two or more undertakings each of which operates, for the purposes of the agreement, at a different level of the production or distribution chain, and relating to the conditions under which the parties may sell or resell certain goods or services".
The group exemption does not apply in the following cases:
1) to agreements between competitors unless the buyer has an annual turnover of less than 100 million euro; when the distributor is a manufacturer and seller; the buyer does not manufacture goods competing with the contract goods; or the supplier supplies services at several levels of trade while the buyer does not provide competing services at the same level at which it purchases the contract services;
2) if the seller has a market share of more than 30% of the relevant market on which it sells the contract goods or services or in the case of exclusive supply agreements, the buyer has more than 30% of the relevant market on which it purchases the contract goods or services;
3) if the agreement contains a blacklisted clause such as:
2) if the seller has a market share of more than 30% of the relevant market on which it sells the contract goods or services or in the case of exclusive supply agreements, the buyer has more than 30% of the relevant market on which it purchases the contract goods or services;
3) if the agreement contains a blacklisted clause such as:
a) imposition of a minimum of fixed price at which the goods or services may be resold;
b) many territorial limitations on where the buyer may resell the goods or services, although restrictions to preserve an exclusive distributor's exclusivity in its territory, to prevent a wholesaler from selling to ultimate users, to prevent sales to unauthorized dealers by members of a selective distribution system and on certain types of component sales are permitted;
c) restrictions on sales to end users by members of a selective distribution system;
d) restrictions on cross-supplies within a selective distribution system; and
e) restrictions on suppliers of components preventing them from supplying end-users or repairers with such spare parts;
4) if the agreement contains:b) many territorial limitations on where the buyer may resell the goods or services, although restrictions to preserve an exclusive distributor's exclusivity in its territory, to prevent a wholesaler from selling to ultimate users, to prevent sales to unauthorized dealers by members of a selective distribution system and on certain types of component sales are permitted;
c) restrictions on sales to end users by members of a selective distribution system;
d) restrictions on cross-supplies within a selective distribution system; and
e) restrictions on suppliers of components preventing them from supplying end-users or repairers with such spare parts;
a) a direct or indirect agreement not to compete for an indefinite period or for a period of more than five years;
b) subject to certain exceptions (including provisions for protection of secret know how), the agreement contains post-expiration non-competition provisions; or
c) the agreement prevents members of a selective distribution system from selling brands of particular competing suppliers.
b) subject to certain exceptions (including provisions for protection of secret know how), the agreement contains post-expiration non-competition provisions; or
c) the agreement prevents members of a selective distribution system from selling brands of particular competing suppliers.
The group exemption remains applicable even if the agreement includes assignment to the buyer of, or the grant to the buyer of a right to use, an intellectual property right, provided that such provisions are not the primary object of the agreement and the rights are directly related to the use, sale or resale of goods by the buyer.
As in most recent group exemptions, the Commission has the right to withdraw the exemption in particular cases and this right is also granted to national competition authorities.
The new regulation came into effect on January 1, 2000.
June 2000 Index