Block Exemption Regulation

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A block exemption regulation is a regulation within the meaning of Art. 288 of the Treaty on the Functioning of the European Union (FEU Treaty) and as such is part of - secondary - European Community law .

A block exemption regulation eliminates certain groups of anti-competitive

  • Agreements between companies,
  • Resolutions of business associations or
  • concerted conduct of companies and / or business associations

exempted from the general prohibition of anti-competitive agreements and practices ( prohibition of cartels ) under Article 101 of the TFEU (formerly Article 81 of the EC Treaty) under certain conditions further specified in the regulation . The block exemption regulation specifies, binding for the group concerned , the very general conditions contained in Art. 101 Paragraph 3 TFEU, under which an agreement or behavior that restricts competition is excluded from the prohibition of cartels. Block exemption regulations are therefore part of European competition law .

scope of application

Block exemption regulations are only of importance for anti-competitive practices that fall under the European ban on cartels under Article 101 TFEU (former Article 81 of the EC Treaty). Block exemption regulations therefore generally only apply to

"Agreements between companies, decisions by associations of companies and concerted practices which are likely to affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market."

In addition, the individual block exemption regulations contain further restrictions on their individual scope. For example, the Block Exemption Regulation for Vertical Agreements only applies to

"Agreements or conduct between two or more companies, each of which operates at a different stage of production or distribution for the purpose of implementing this Agreement, and which affect the terms on which the parties may purchase, sell or resell certain goods or services."

The German law against restraints of competition refers directly to the block exemption regulations in Section 2 (2) GWB, so that the exemption regulations also apply accordingly to purely German issues.

In Austria, Section 3 of the Cartel Act enables block exemption regulations to be issued to exempt groups of cartels from the ban on cartels; reference can be made to the currently valid version of a regulation of Community law. In Austria, however, such a regulation has not yet been issued.

Construction principles

Modern block exemption regulations usually consist of

  • a precise description of those agreements, resolutions and behavior that fall under the regulation,
  • the conditions under which such agreements, resolutions and behavior are to be exempted from the ban on cartels. This basically includes a market share limit. If the participating companies or company associations exceed this market share limit, the block exemption regulation is no longer applicable in this case.
  • a list of hardcore competition restrictions which under no circumstances benefit from the exemption from the prohibition of cartels under the block exemption regulation (so-called "black list"),
  • the authority of the European Commission to withdraw the exemption from the participating companies or company associations in individual cases.

Effects

Agreements, decisions and practices restricting competition that fall within the scope of the Block Exemption Regulation and meet all the conditions for exemption are exempt from the prohibition of cartels under Article 101 of the TFEU. In particular, they are not ineffective under Article 101 (2) of the TFEU and cannot be punished with a fine .

Agreements, decisions and behaviors that are not covered by a block exemption regulation because they do not fall within the scope of the regulation, or indeed fall within its scope but do not meet the exemption requirements, are therefore not automatically prohibited under Article 101 of the TFEU . In such cases, it must be examined in each individual case whether the prohibition requirements from Article 101 (1) TFEU are met and whether the general requirements from Article 101 (3) TFEU, including agreements, decisions and practices restricting competition from the prohibition of cartels are excluded are given.

It is fundamentally the task of the company to check whether a behavior is justified by Art. 101 Para. 3 TFEU or a block exemption. According to Article 10 of Regulation (EC) No. 1/2003, however , the Commission can ex officio determine that Article 101 TFEU (formerly Article 81 EC Treaty) is inapplicable for reasons of public interest. However, this determination is only of a declaratory nature and has no binding effect on the Commission or national competition authorities.

However, a company may possibly make use of the option of a letter of advice. However, the conditions for such a letter, which the Commission published in the Official Journal under C 101/78 , are very narrow. Furthermore, this letter is also not binding.

In individual cases, the Commission can withdraw the benefits of a block exemption under Article 29 of Regulation (EC) No. 1/2003, provided that the agreement produces effects that are incompatible with Article 81 III EC.

Existing regulations (incomplete)

In some cases, the European Commission has published notices on the block exemption regulations, which contain guidelines and interpretation aids for the application of the related block exemption regulations.

See also

literature

  • Philipp Päuser: Vertical restrictions in European competition law according to Regulation (EC) No. 2790/99. University of Würzburg, Würzburg 2003 (Dissertation, DNB 971602654/34 ).

Individual evidence

  1. ↑ Walter Brugger : Does Austria need a regulation according to § 3 KartG? in OZK 2009, 3 (PDF; 572 kB)