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Requests for information or for an opinion - Article 15(1)

Pursuant to Article 15(1) of Regulation 1/2003, courts of the Member States may contact the Commission to ask it to transmit to them information in its possession or to give its opinion on questions concerning the application of EU competition rules.

In its Notice on the co-operation between the Commission and the courts of the EU Member States in the application of [Articles 101 and 102 TFEU], the Commission explained its policy regarding the application of Article 15(1) of Regulation 1/2003.

Requests for information

Scope

A national court may ask the Commission for information it holds, such as:

  • documents in its possession;
  • information of a procedural nature e.g. whether a case is pending before the Commission, whether the Commission has initiated a procedure, whether it has already taken position or when the Commission is likely to take a decision, so as to be able to determine whether to stay proceedings or whether interim measures should be adopted.

Timing

The Commission will endeavour to provide the national court with the requested information within one month from the date it receives the request. Where the Commission has to ask the national court for further clarification of its request or where the Commission has to consult those who are directly affected by the transmission of the information, that period starts to run from the moment that it receives the required information.

Requests for an opinion

Scope and guidance for drafting requests for an opinion

A national court may ask the Commission for its opinion on economic, factual and legal matters concerning the application of EU competition rules.

To ensure that the Commission has a clear understanding of the factual and legal context of the proceedings, the request for an opinion should:

  • include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based,
  • explain the reasons which prompted the national court to request an opinion; and
  • include, where appropriate, a summary of the main arguments of the parties.

We also recommend:

  • to keep requests for an opinion as short as possible and to use simple, clear and concise language, in view of the frequent need for the Commission to translate them.
  • to number the points or paragraphs of the request for an opinion.
  • to include the question(s) of the request in a clearly identified section.

Timing

The Commission will endeavour to provide the national court with the requested opinion within four months from the date it receives the request. Where the Commission has requested the national court for further information in order to enable it to formulate its opinion, that period starts to run from the moment that it receives the additional information.

Opinions issued

The opinions are sorted by year in which the opinion was issued.

The opinions published below are those for which the national court has granted permission for publication.

2009

Case National Court Commission opinion National Court
judgment
Summary & background

Bikes/Ducati

Commercial Court Dendermonde (Rechtbank van Koophandel te Dendermonde)

17/11/2009
nl

03/11/2010
nl

selective distribution system for resale and repair of motorcycles – refusal to be admitted – qualitative and quantitative criteria – definition of the relevant product market – Block Exemption Regulation 2790/1999 – Individual exemption under Article 101(3) – abuse of dominant position

Summary >

On 17 November 2009, the Commission issued an Opinion in response to a request of the Commercial Court of Dendermonde in Belgium of 2 February 2009. The Court requested the Commission for an Opinion under Article 15(1) of Regulation 1/2003 in the context of a dispute regarding the refusal by Ducati to continue to admit Bikes to its selective distribution network for the resale and repair of motorcycles. In this context, the Court asked the Commission several questions, among which questions relating to the following:

  • Whether the Commission has a procedure pending in relation to the behaviour concerned by the case, to which the answer was that this is not the case.
  • Whether the setting up of a selective distribution network by Ducati has such nature as to have an appreciable effect on trade between Member States. The Commission reiterated the conditions for appreciable effect on trade between Member States from the relevant Commission Guidelines and stated that it is for the national court to determine whether these conditions have been fulfilled in the concrete case at hand.
  • How the relevant product market should be defined and what the impact on the application of the Vertical Block Exemption Regulation 2790/1999 would be. The Commission stated that it had not yet taken a position on the definition of the relevant market at issue in its own decisions and that it is for the national court to come to such definition in the context of the specific case at hand. It furthermore explained the application of the market share threshold from the BER.
  • Whether the selective distribution network of Ducati qualifies for an individual exemption. The Commission gave general guidance on factors that could be taken into account, leaving the specific assessment of the case to the national court.
  • Questions on qualification of certain conditions of the selective distribution network as qualitative or quantitative conditions. The Commission gave general guidance on the distinction, leaving the specific assessment of the case to the national court.
  • Whether or not Ducati has a dominant position on the relevant market and whether or not it has abused such dominant position. The Commission gave general guidance on factors that could be taken into account, leaving the specific assessment of the case to the national court.

On 3 November 2010, the Court has issued its final judgment. In this judgment, Ducati was found to have breached competition law by not admitting Bikes to its selective distribution network. Ducati was ordered, under the threat of periodic penalty payments, to end such breach by admitting Bikes and providing to it the services that it provides to the members of that system.

Brouwerij Haacht

Antwerp Appeal Court (Hof van beroep te Antwerpen)

10/03/2009
nl

10/11/2009
nl

Exclusive purchasing agreements for the supply of beer – Delimitis case – market shares and market share thresholds – de minimis notice

Summary >

On 10 March 2009, the Commission issued an Opinion in response to a request of the Antwerp Appeal Court in Belgium. The Court requested the Commission for an Opinion under Article 15(1) of Regulation 1/2003 in the context of a dispute regarding a possible violation of Belgian and EU competition law regarding exclusive purchasing agreements for the supply of beer from a brewery to a bar in Belgium.

The questions referred by the national court relate to the brewery's market share as determined in the Notice of 20 November 2002 published pursuant to Article 19(3) of Regulation No 17 concerning notification COMP/A37.904/F3 — Interbrew. The Commission provides guidance to the national court on these market shares, and determines that on the basis of the Notice, all contracts (both bound and non-bound contracts) should be taken into account for the determination of this market share. Furthermore, guidance is provided on the applicable de minimis market share thresholds.

On 10 November 2009, the Court has issued its final judgment. It held that no violation of competition law had taken place.

UAB Schneidersöhne Baltija/UAB Libra Vitalis

Administrative Supreme Court of Lithuania

20/07/2009
bilingual en-fr; lt

16/10/2009
lt

agreement to exchange information between competitors – market structure – other economic criteria for assessment of agreement – scope of Commission's opinion under Article 15(1)

Summary >

On 20 July 2009, the Commission issued an Opinion on request of the Supreme Administrative Court of Lithuania of 9 September 2008. The Court requested the Commission's opinion in the context of a dispute concerning an appeal against a decision of the Lithuanian Competition Authority, holding that a certain agreement to exchange information between competitors in the paper sector is contrary to, inter alia, Article 101(1) TFEU. The Supreme Administrative Court referred three questions to the Commission for an Opinion.

The first question is whether, in order to establish and infringement of Article 101 TFEU concerning an exchange of information, there is a need to establish that the market is both oligopolistic and highly concentrated. The Commission first notes that when the exchange of information constitutes a restriction by object or has actual anti-competitive effects, the market structure may not be relevant. Only in cases where the "potentially anti-competitive effects" of the agreement have to be assessed, the market structure should be taken into account. It follows from case-law that it is necessary that the market structure is not "fragmented" or "atomised", but it does not follow from the case-law that both the "highly concentrated market" and the "oligopolistic" nature of the market need to be established in every case for the purpose of establishing an infringement.

The second question concerns the other economic criteria (apart from the market structure) that are relevant for the assessment of the economic conditions in the relevant market for the purpose of the assessment of an agreement to exchange information. The Commission mentions in its Opinion relevant criteria, such as barriers to entry, the size and number of the undertakings on the market, the volume of the market, the nature of the product, structural links between competitors and the transparency in the market.

The third question concerns the assessment under Article 101(1) TFEU of the agreements to exchange information at issue in the case before the national court. The Commission does not enter into that assessment, as its Opinions can contain only factual information or economic or legal clarification, but cannot consider the merits of the case pending before the national court.

2007

Case National Court Commission opinion National Court
judgment
Summary & background

Danska Staten genom BornholmsTrafiken v. Ystad Hamn Logistik Aktiebolag

Högsta Domstolen

16/02/2007
sv

19/02/2008
sv

definition of relevant market – Article 102 TFEU – port services

Summary >

On 16 February 2007 the Commission issued an opinion on request of the Högsta Domstolen (Supreme Court) in Sweden of 18 October 2006. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 as regards the question "whether the provision of port services in the port of Ystad to ferry operators offering ferry services for passengers and vehicles on the route Ystad-Rönne should be regarded as the relevant market for the application of Article [102 TFEU].

The Commission Opinion provides guidance to the Swedish Supreme Court on how to define the relevant market in this case. The Commission states that the provision of port services is an upstream market from the transport services that ship-operators provide to their customers. Then the Commission indicates that it should be established whether the provision of port services to ferry operators constitutes a separate relevant market. The differences in required facilities and the fact that the port operator would be able to target and apply different conditions to different types of customers would normally be sufficient to conclude such separate market. A further step would then be to consider whether there is any port that can be regarded as a substitute for the Port of Ystad for traffic to and from Bornholm. In order to be a substitute, the port must offer similar advantages (facilities, capacity, services) to the ferry operators and constitute a viable alternative to the customers using the ferry services (depending on elements like their place of origin and destination, travel time, price and service). Furthermore, the viability for the ferry operator will be an element to assess as well as the fact whether or not the ferry operator has undertaken significant investments in the first port.

In its judgment of 19 February 2008, the Swedish Supreme Court upheld the judgment of the appeal court, defining the market narrowly as the provision of port services in the port of Ystad to ferry operators offering ferry services for passengers and vehicles on the route Ystad-Rönne.

2006

Case National Court Commission opinion National Court
judgment
Summary & background

Dutch mussels producers

The Hague Appeal Court (Gerechtshof 's-Gravenhage)

23/05/2006
(nl )

24/04/2008
(nl )

scope of application of EU competition law – fishing quota – Regulation 26/2962

Summary >

On 23 May 2006, the Commission issued an Opinion answering to a request of the The Hague Appeal Court in the Netherlands of 27 January 2005. The The Hague Appeal Court requested the Commission for an Opinion under Article 15(1) of Regulation 1/2003 in the context of a dispute as regards the compatibility with EU competition law of a division of fishing quota of mussel seeds by the Dutch Cooperative Organisation of Producers of the Dutch Mussels Culture (CPNM). One of the main questions that arose in the context of this case related to whether or not the regulation of the fishing quota of mussel seeds fulfilled the conditions of Regulation 26/1962 and therefore – on the basis of Article 36 of the EC Treaty – fell outside the scope of application of EU competition law.

In its Opinion, the Commission holds that the division of mussels quota seem to meet the conditions of Article 2(1) second sentence of Regulation 26/1962, which concerns agreements concluded in the framework of a national market organisation:

  • the CPNM qualifies as a farmers' association within the meaning of Regulation 26/2962;
  • the Regulation Mussel Fishing, in which the system of division of quotas is laid down therefore seems to qualify as a decision of a farmers' association;
  • as the division of quota only concerns the Netherlands, it seems that it constitutes a decision of a farmers' association belonging to a single Member State which concern the production of agricultural products;
  • the system does not concern prices; and
  • it seems that competition is not excluded and that the objectives of the common agricultural policy are not jeopardised.

On 24 April 2008, the The Hague Appeal Court rendered its final judgment in this case. In its judgment, it followed the Opinion submitted by the Commission and, among others, on that basis came to an annulment of the first instance judgment.

Port of Antwerp

Antwerp Appeal Court (Hof van beroep te Antwerpen)

23/05/2006
(nl )

National judgment will be published upon receipt from the national court

Article 102 TFEU – unfair trading conditions and contractual terms – contractual limitation of liability – exploitative abuse – port services

Summary >

On 23 May 2006, the Commission issued an Opinion in response to a request of the Antwerp Appeal Court in Belgium. The Court requested the Commission for an Opinion under Article 15(1) of Regulation 1/2003 in the context of a dispute regarding the validity under Article 102 TFEU of a contractual limitation of liability of pilots providing services on ships in the port of Antwerp.

The question referred by the Court relates to the compatibility with Article 102 TFEU of such contractual liability of pilots. The Commission indicates that the compatibility with Article 102 TFEU of such contractual limitation on liability should be assessed in the framework of unfair trading conditions. In this case, the alleged abuse seems only to be of an exploitative nature, without having exclusionary elements. The Commission provides examples from the ECJ case-law and its own decision practice on unfair trading conditions establishing exploitative abuses. It furthermore states that the national court should assess whether the dominant undertaking would have applied a similar limitation on liability in a competitive situation. Finally, it indicates that (legislative) limitations on the liability of pilots seems common in the Member States, but that it is for the national court to assess the case, taking in account all relevant circumstances. The burden of proof for the violation of Article 102 TFEU lies with the party invoking such violation.

2005

Case National Court Commission opinion National Court
judgment
Summary & background

Spanish fuel stations

Juzgado de lo Mercantil No4, Madrid

07/07/2005
(es )

19/10/2005
(es )

exclusive purchasing agreement for gas stations – application of Article 101(3) TFEU and Block Exemption Regulation – duration of the agreement – Guidelines on the application of Article 101(3)

Summary >

On 7 July 2005 the Commission issued an opinion on request of the Juzgado de lo Mercantil No4 in Madrid of 21 February 2005. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 as regards the compatibility with Article 101 TFEU of a contract between supplier and distributor which submits the distributor to an exclusive purchasing obligation for the duration of 14 years (counting as from 1995).

In its Opinion, the Commission provides the national court with the guiding principles that it considers relevant for deciding whether such a contract forms a restriction of competition prohibited by Article 101(1) TFEU. The Commission furthermore states that, if the national court came to the conclusion that the contracts constitute such restriction, it would subsequently have to investigate whether the contracts fulfil the conditions of Article 101(3) TFEU, either under the Block Exemption Regulation 2790/1999, or under an individual assessment. As to the Block Exemption Regulation, the Commission concludes that the contracts cannot benefit from its application, as the duration of 14 years as from 1995 is too long. As to the individual examination under Article 101(3) TFEU, the Commission refers the national court to the Commission Communication containing Guidelines on the application of Article [101(3)] of the Treaty (2004/C 101/08).

Wallonie Expo SA/FEBIAC asbl

Cour d'appel de Bruxelles

02/02/2005
(fr )

10/11/2005
(fr )

non-compete clause – compatibility with Articles 101 and 102 TFEU – geographic market definition – application of the criteria of Article 101(3) TFEU.

Summary >

On 2 February 2005 the Commission issued an opinion on request of the Brussels Appeal Court of 7 December 2004. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 in the context of a dispute on the compatibility with Articles 101 and 102 TFEU of a non-compete clause in an agreement between the organiser of a fair for heavy motor vehicles (FEBIAC) and its distributors/exposers, which provides that the distributors/exposers cannot, in the 6 months before and after the FEBIAC fair, participate in other fairs presenting one or more of the same product groups as the FEBIAC fair.

In its Opinion, the Commission holds that it is for the national court to determine whether such a clause restricts competition within the meaning of Article 101(1) TFEU. The Commission indicates that the assessment will be different according to the geographic market definition (national or larger than national) chosen by the national court. The Commission then continues by stating that in case the national court found an infringement of Article 101(1), it would have to establish whether or not the non-compete clause fulfils the criteria of Article 101(3) TFEU. As to the first 3 criteria, the Commission holds that these should be considered to be fulfilled. It is then up to the national court to determine whether the fourth condition (absence of elimination of all competition) is fulfilled. The assessment will again largely depend on the geographical market definition chosen by the national court. Finally, the Commission indicates that the non-compete clause could also be considered to be in contravention of Article 102 TFEU, regardless of the conclusion with regard to Article 101 TFEU. It is for the national court to determine whether this is the case.

On 10 November 2005, the Brussels Court of Appeal rendered its judgment. It concluded that no violation of Article 101 TFEU had taken place, but that the non-compete clause constituted an abuse of a dominant position by FEBIAC, as the clause did not provide for the possibility to derogate from the non-compete clause to participate in a fair that doesn't have a sufficiently serious impact on FEBIAC's fairs.

SABAM c Productions and Marketing

Cour d'appel de Bruxelles

02/02/2005
(fr )

03/11/2005
(fr )

Abuse of dominant position – application of Article 102 TFEU – discounts and rebates – discriminatory pricing – exploitation licences for concerts and music events

Summary >

On 2 February 2005, the Commission issued an opinion on request of the Brussels Appeal Court of 7 December 2004. The Brussels Appeal Court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 in the context of a dispute as regards the compatibility with EU competition law of a discount scheme that SABAM applies as regards exploitation licences for concerts and other music events in Belgium. SABAM, having a statutory monopoly as regards the granting of exploitation licences, applies a 50% discount to "Large Organisers" who fulfil certain specific criteria: (i) they are professional organisers and organise events on a regular basis; (ii) they realise a minimum of 500.000 Bef (around 12500 euros) of copyrights per year; (iii) did not have any legal procedures for 3 years and (iv) produce an extract of the statutes of the company. The question is whether SABAM abuses its dominant position within the meaning of Article 102, second paragraph, under c, TFEU by applying this discount scheme.

In its opinion, the Commission recalls that it has been decided in previous cases that the territory of one Member State constitutes a substantial part of the internal market, so that the EU competition rules apply. As regards the application of Article 102, second paragraph, under c TFEU, the Commission holds that – in this context – the national court will have to evaluate (i) whether the behaviour of SABAM leads to the application of unequal conditions to equivalent services; and (ii) whether a potential discrimination is susceptible to create competitive disadvantages for the discriminated undertakings. In this regard, it is important to realize that the criteria for the discount should be applied in an objective manner and not constitute an unjustified discrimination to the benefit of certain customers. As regards the 50% discount, it is stated that this should correspond to a decrease in SABAM's cost due to, for example, economies of scale that SABAM can realise with large organisers. If the national court would establish that SABAM's discount scheme is discriminatory, the national court should continue by examining whether this discrimination creates a disadvantage for the victims and whether the complainant is in competition with the undertakings benefiting from the discount scheme.

In its final judgment of 3 November 2011, the Brussels Court of Appeal holds that SABAM's discount scheme constitutes an abuse of dominant position contrary to Article 102, second paragraph, under c TFEU. The Court holds that the conditions under which the discount scheme is applicable are not clearly stated in writing and are not transparent. Also, the discount scheme cannot be justified on the basis of objective elements and cost reductions, such as economies of scale. As such, it applies unequal conditions to equivalent services leading to a competitive disadvantage.

Laurent Emond c Brasserie Haacht

Cour d'appel de Bruxelles

02/02/2005
(fr )

23/06/2005
(fr )

exclusive purchasing obligation – compatibility with Article 101 TFEU – de minimis Communication – application of Vertical Block Exemption Regulations – scope of nullity under Article 101(2) TFEU

Summary >

On 2 February 2005, the Commission issued an opinion on request of the Brussels Appeal Court of 7 December 2004. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 in the context of an action for damages of Brasserie Haacht against Laurent Emond in which the latter had invoked the incompatibility of an exclusive purchasing obligation in the contract as contrary to Article 101 TFEU as a defence against the claim. The Court of Appeal in Liege, before which the case was pending, referred preliminary questions on the compatibility of the exclusive purchasing obligation with Article 101 TFEU to the Court of Appeal in Brussels, in which context the Commission was asked for its opinion.

In its Opinion, the Commission discusses the circumstances in which the de minimis communication of the Commission could be applicable to the agreements against the background of the ECJ's judgment in the Delimitis case. Furthermore, the Commission discusses the applicability of the old and new Vertical Block Exemption Regulations to the agreements and identifies the periods during which those agreements were covered by a Block Exemption and the periods where this was not the case. Finally, the Commission shortly describes the scope of the nullity of Article 101(2) TFEU as explained in the case-law of the Court: this nullity has an absolute character (in relation to both the parties and third parties) and concerns all effects (both past and future) of the agreement.

In its judgment of 23 June 2005, the Brussels Court of Appeal rules that the exclusive purchasing clause in the contracts between Brasserie Haacht and Laurent Emond is not contrary to Article 101 TFEU and that therefore the defence of Laurent Emond against the damages claim of Brasserie Haacht has to be dismissed. The case is then referred back to the Court of Appeal in Liege.

2004

Case National Court Commission opinion National Court
judgment
Summary & background

Berenguer / Repsol

Juzgado de Primera Instancia No 73, Madrid

29/09/2004
(es / fr )

26/01/2006 (es )

exclusive purchasing obligation – qualification as agency agreement or distribution agreement – application of Article 101(1) TFEU – application of Vertical Block Exemption Regulation

Summary >

On 29 September 2004 the Commission issued an opinion on request of the Juzgado de Primera Instancia No 73 in Madrid of 16 March and 28 June 2004. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 as regards the compatibility with Article 101 and Article 102 TFEU of a contract between supplier and distributor which submits the distributor to an exclusive purchasing obligation and as regards the distinction between agency agreement and distribution agreement for the purposes of Article 101 TFEU.

In its Opinion, the Commission provides the national court with the guiding principles that it considers relevant for deciding whether such a contract forms a restriction of competition prohibited by Article 101(1) TFEU. In this context the Commission indicates that in so far as Repsol is owner of the fuel stations, the duration of the exclusive purchasing agreement cannot contribute as such to foreclosure of the market. As regards the applicability of the vertical Block Exemption Regulation 2790/1999, the Commission holds that the contracts cannot benefit from its application as the market share of Repsol exceeds 30%. Finally, the Commission provides the national court with guidance as to when a contract qualifies as agency agreement for the purpose of Article 101 TFEU. It indicates that exclusive supply clauses in agency agreements can also be contrary to Article 101(1) TFEU in so far as they affect interbrand competition and have foreclosure effects on the market. Therefore, in this context, the Commission considers the qualification of the contracts as agency agreements or distribution agreements to be without pertinence.

In its final judgment of 26 January 2006, the Juzgado de Primera Instancia No 73 awards the claim of Berenguer and declares the contracts in question null and void.

Ruiz Gonzalez / Repsol

Juzgado de Primera Instancia No 7, Madrid

29/09/2004 (es / fr )

 

exclusive purchasing obligation – qualification as agency agreement or distribution agreement – application of Article 101(1) TFEU – application of Vertical Block Exemption Regulation

Summary >

On 29 September 2004 the Commission issued an opinion on request of the Juzgado de Primera Instancia No 7 in Madrid of 7 April 2004, received on 4 May 2004. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 as regards the compatibility with Article 101 and Article 102 TFEU of a contract between supplier and distributor which submits the distributor to an exclusive purchasing obligation and as regards the distinction between agency agreement and distribution agreement for the purposes of Article 101 TFEU.

In its Opinion, the Commission provides the national court with the guiding principles that it considers relevant for deciding whether such a contract forms a restriction of competition prohibited by Article 101(1) TFEU. In this context the Commission indicates that in so far as Repsol is owner of the fuel stations, the duration of the exclusive purchasing agreement cannot contribute as such to foreclosure of the market. The Commission also provides the national court with guidance as to when a contract qualifies as agency agreement for the purpose of Article 101 TFEU. It indicates that exclusive supply clauses in agency agreements can also be contrary to Article 101(1) TFEU in so far as they affect interbrand competition and have foreclosure effects on the market. Therefore, in this context, the Commission considers the qualification of the contracts as agency agreements or distribution agreements to be without pertinence. Finally, as regards the applicability of the vertical Block Exemption Regulation 2790/1999, the Commission holds that the contracts cannot benefit from its application as the market share of Repsol exceeds 30%. The Commission underlines that in such case, the contracts are not presumed to be illegal, but may need to be assessed individually.

Estaciones 2000 / Repsol Juzgado de Primera Instancia No 58, Madrid

18/05/2004 (es )

08/04/2005 (es )

exclusive purchasing obligation – qualification as agency agreement or distribution agreement – application of Article 101(1) TFEU – application of Vertical Block Exemption Regulation

Summary >

On 18 May 2004 the Commission issued an opinion on request of the Juzgado de Primera Instancia No 58 in Madrid of 10 July 2003, received on 8 August 2003. The court requested the Commission's opinion under Article 15(1) of Regulation 1/2003 as regards the compatibility with Article 101 and Article 102 TFEU of a contract between supplier and distributor which submits the distributor to an exclusive purchasing obligation and as regards the distinction between agency agreement and distribution agreement for the purposes of Article 101 TFEU.

In its Opinion, the Commission provides the national court with guidance as to when a contract qualifies as agency agreement for the purpose of Article 101 TFEU. It indicates that the determining factor as regards this qualification is normally formed by the financial and commercial risk that is assumed by the agent in relation to the activities that the principal assigned to it. The Commission then indicates that it is for the national court to decide whether or not the contracts in question qualify as agency agreements or distribution agreements.

If the national court considers that the contracts in question do not qualify as agency agreements, the Commission provides guidance as to the application of the Vertical Block Exemption Regulation 2790/1999 to the exclusivity clauses in question. The threshold of 30% market share is underlined and the attention of the court is drawn o the duration of the exclusive purchasing agreement. The Commission notes in its conclusion that if the contracts are not covered by the Vertical Block Exemption Regulation 2790/1999, the contracts are not automatically presumed to be illegal, but may need to be assessed individually.

  
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