Overview

The prohibition on restraints of competition, as set forth in Art 81(1) EC, applies not only to agreements concluded between competitors but also to agreements between undertakings operating on different levels of production or distribution. Pursuant to Art 81(3) EC, anti-competitive agreements are exempted from the prohibition if, in short, they produce efficiencies that countervail the negative effects on consumers.

Basically, it is up to undertakings to self-assess whether their agreements meet the requirements for an exemption. However, to increase legal certainty, the Commission is empowered to adopt regulations which declare certain categories of agreements block exempted from the prohibition. In practice, the most important of these BER is the one on vertical agreements (BER Vertical), which covers, for instance, the widely used exclusive distribution, as well as industrial supply agreements. For the motor vehicle sector, a specific vertical BER exists (BER Motor Vehicles). These important BERs will expire on 31 May 2010.