These changes show that the distributor side is now more relevant than before. Distributors are becoming very powerful on the market, so that at least the Commission considers that they risk using their market power to impose restrictive anti-competitive conditions on suppliers. Consequently, the exemption does not apply when the buyer`s market share exceeds 30% (whereas this threshold has hitherto only applied if the agreement contained exclusive supply obligations). In a speech delivered on 20 April 2010, the Vice-President of the European Commission stated that the 30% market share threshold now applies to both distributors and suppliers, in order to prevent “large distributors from using their purchasing power to impose anti-competitive contractual clauses on suppliers to the detriment of competition and consumers. This change is therefore entirely justified and benefits SMEs, whether they are producers or retailers who might otherwise be excluded from the distribution market. As in the old Block Exemption Regulation, the new regime applicable to vertical agreements is based on the following principles: in accordance with Article 1a of Regulation No 19/65/EEC, the Commission may, by means of a Regulation, declare that parallel networks of similar vertical restraints cover more than 50% of a relevant market, this Regulation does not apply to vertical agreements which contain specific restrictions on that market. The limitation of market share, the absence of exemption from certain vertical agreements and the conditions laid down in this Regulation generally ensure that the agreements covered by the block exemption do not allow the parties to eliminate competition in respect of a substantial part of the products concerned. The prohibition laid down in Article 101(1) of the Treaty shall apply during the period from 1 June 2010 to 31 May 2011 for agreements already in force on 31 May 2010 which do not fulfil the conditions for exemption laid down in this Regulation but which, on 31 May 2010, fulfilled the conditions for exemption laid down in Regulation (EC) No 2790/1999. Companies involved in the distribution of goods or services in the EU will want to consider the impact of the new BERs on their existing agreements, such as the impact of the buyer`s new market share threshold. Ber applies only as long as the market share threshold is reached.
Companies must continuously monitor their supply chains to ensure that the threshold is not exceeded. If, initially, a market share does not exceed 30% but exceeds that value without exceeding 35%, the exemption provided for in Article 2 shall apply for a period of two consecutive calendar years after the year in which the market share threshold of 30% was first exceeded; Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the EC Treaty to groups of vertical agreements and concerted practices (3) defines a category of vertical agreements which the Commission has normally assumed to authorise under the conditions laid down in Article 101(3) of the Treaty. In view of the generally positive experience gained in the application of the Regulation, which expires on 31 May 2010, and taking into account the experience gained since its adoption, a new Block Exemption Regulation should be adopted. The new BER will apply from 1 June 2010 to 31 May 2022. However, for agreements concluded on 31 May 2010 for agreements eligible for exemption under the previous Regulation on 31 May 2010, an additional period of one year shall apply (until 31 May 2011). . . .