The Commission`s vertical guidelines do not deal in detail with the restrictions imposed on suppliers. However, a supplier`s limitation of components to the sale of spare parts to end-users or repairers who are not charged by the buyer with the repair or maintenance of the buyer`s products is considered an essential restriction of competition. As a result, these restrictions almost always fall under section 101, paragraph 1, are de minimis communication and vertical category exemption outside safe ports, and rarely qualify for an exemption under Section 101, paragraph 3. In September 2015, the European Technology – Travel Services Association (ETTSA), which represents online travel agencies, also filed a complaint with the Commission, arguing that the practice of some airlines that bought tickets via online platforms other than its own was contrary to competition. In April 2016, the Commission sent requests for information to several airlines, travel agencies, online booking sites and global distributors. In May 2018, the Commission rejected the complaint filed by ETTSA, which filed a complaint against the Commission with the European Ombudsman in July 2018. However, in November 2018, the Commission opened a formal review procedure on the terms of agreements between certain global distributors and travel agencies, which could prevent them from purchasing ticket distribution services through other suppliers. Public authorities in their decisions or guidelines Take into account restrictions on the retention of resale prices that apply for a limited period of time to the introduction of a new product or brand or a specific promotional or sales campaign; or, in particular, to prevent a retailer from using a brand as a “loss leader”? a concerted agreement or practice between two or more companies, each of which, acting at another level of the production or distribution chain within the meaning of the agreement or concerted practice, refers to the conditions under which the parties can buy, sell or resell certain goods or services. While the vast majority of new aid schemes (nearly 95% according to 2019 figures) under a category exemption regulation, the question of the correct application and interpretation of the provisions of these regulations becomes even more acute. Complaints are therefore filed with the (…) Where an agent identifies one or more of the above risks to a more than negligible extent, the vertical guidelines suggest that the Commission considers that the agreement would not be considered a genuine agency agreement and that Article 101 can therefore apply as if it were a standard distribution agreement.

A vertical agreement falls under this regulation where neither the supplier nor the purchaser of the goods or services have a market share of more than 30%. For the supplier, it is its market share in the supply market in question, that is, the market in which it sells goods or services, that is decisive for the application of the category exemption. For the buyer, it is his market share in the purchase market in question, that is, the market in which he buys the goods or services, that is decisive for the application of the regulation. The vertical class exemption requires that the agreement in question be vertical (i.e., the parties operate at different market levels “for the purposes of the agreement”). Parties to an agreement that compete in other product markets, but not in the contract market, may benefit from the vertical class exemption, provided they are not both “real and potential competitors” in the market that includes contract products.

Andrew Verboncouer • (920) 562-9601 •