Commission Regulation (EU) 2023/1067 of 1 June 2023 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements (Text with EEA relevance)

• CELEX: Regulation (EU) 2023/1067
• Articles: 9

Article 1 Definitions

1.   For the purposes of this Regulation, the following definitions shall apply:

(1)

‘specialisation agreement’ means a unilateral specialisation agreement, a reciprocal specialisation agreement or a joint production agreement;

(a)

‘unilateral specialisation agreement’ means an agreement between two or more parties which are active on the same product market and under which one or more parties agree to fully or partly cease production of certain products or to refrain from producing those products and to purchase them from another party or parties, which agree to produce and supply them;

(b)

‘reciprocal specialisation agreement’ means an agreement between two or more parties which are active on the same product market and under which two or more parties, on a reciprocal basis, agree to fully or partly cease or refrain from producing certain but different products and to purchase those products from one or more of the other parties, which agree to produce and supply them;

(c)

‘joint production agreement’ means an agreement under which two or more parties agree to produce certain products jointly;

(2)

‘agreement’ means an agreement between undertakings, a decision by an association of undertakings or a concerted practice;

(3)

‘product’ means a good or a service, including both intermediary goods or services and final goods or services, with the exception of distribution and rental services;

(4)

‘production’ means the manufacture of goods or the preparation of services, including by way of subcontracting;

(5)

‘preparation of services’ means activities carried out upstream of the provision of services to customers;

(6)

‘specialisation product’ means a product which is produced under a specialisation agreement;

(7)

‘downstream product’ means a product for which a specialisation product is used as an input by one or more of the parties and which is sold by those parties on the market;

(8)

‘relevant market’ means the relevant product and geographic market to which the specialisation products belong, and, in addition, where the specialisation products are intermediary products that are fully or partly used captively by one or more of the parties as inputs for the production of downstream products, the relevant product and geographic market to which the downstream products belong;

(9)

‘competing undertaking’ means an actual or potential competitor:

(a)

‘actual competitor’ means an undertaking that is active on the same relevant market;

(b)

‘potential competitor’ means an undertaking that, in the absence of the specialisation agreement, would, on realistic grounds and not just as a mere theoretical possibility, be likely to undertake, within not more than 3 years, the necessary additional investments or other necessary costs to enter the relevant market;

(10)

‘exclusive supply obligation’ means an obligation not to supply the specialisation products to a competing undertaking other than a party or parties to the specialisation agreement;

(11)

‘exclusive purchase obligation’ means an obligation to purchase the specialisation products only from a party or parties to the specialisation agreement;

(12)

‘joint’, in the context of distribution, means activities where the work involved is:

(a)

carried out by a joint team, organisation or undertaking; or

(b)

undertaken by a jointly appointed third party distributor on an exclusive or non-exclusive basis, provided that the third party is not a competing undertaking;

(13)

‘distribution’ means the sale and supply of the specialisation products to customers, including the commercialisation of those products.

2.   For the purposes of this Regulation, the terms ‘undertaking’ and ‘party’ shall include their respective connected undertakings. ‘Connected undertakings’ means:

(1)

undertakings in which a party to the specialisation agreement, directly or indirectly has one or more of the following rights or powers:

(a)

the power to exercise more than half the voting rights;

(b)

the power to appoint more than half the members of the supervisory board, board of management or bodies legally representing the undertaking;

(c)

the right to manage the undertaking’s affairs;

(2)

undertakings which directly or indirectly have, over a party to the specialisation agreement, one or more of the rights or powers listed in point (1);

(3)

undertakings in which an undertaking referred to in point (2) has, directly or indirectly, one or more of the rights or powers listed in point (1);

(4)

undertakings in which a party to the specialisation agreement together with one or more of the undertakings referred to in points (1), (2) or (3), or in which two or more of the latter undertakings, jointly have one or more of the rights or powers listed in point (1);

(5)

undertakings in which one or more of the rights or powers listed in point (1) are jointly held by:

(a)

parties to the specialisation agreement or their respective connected undertakings referred to in points (1) to (4); or

(b)

one or more of the parties to the specialisation agreement or one or more of their connected undertakings referred to in points (1) to (4) and one or more third parties.

Article 2 Exemption

1.   Pursuant to Article 101(3) of the Treaty, and subject to the provisions of this Regulation, Article 101(1) of the Treaty shall not apply to specialisation agreements.

2.   The exemption established in paragraph 1 shall apply to the extent that such agreements contain restrictions of competition falling within the scope of Article 101(1) of the Treaty.

3.   The exemption established in paragraph 1 shall also apply to specialisation agreements which include provisions on the assignment or licensing of intellectual property rights to one or more of the parties, provided that those provisions are directly related to and necessary for the implementation of the agreement and do not constitute the primary object of the agreement.

4.   The exemption established in paragraph 1 shall also apply to specialisation agreements whereby:

(a)

the parties accept an exclusive purchase or an exclusive supply obligation; or

(b)

the parties jointly distribute the specialisation products.

Article 3 Market share threshold

1.   The exemption established in Article 2 shall apply on condition that the combined market share of the parties does not exceed 20 % on the relevant market(s) to which the specialisation products belong.

2.   Where the specialisation products are intermediary products that are fully or partly used captively by one or more of the parties as inputs for the production of downstream products, which they also sell, the exemption established in Article 2 shall only apply if both of the following conditions are fulfilled:

(a)

the parties’ combined market share does not exceed 20 % on the relevant market(s) to which the specialisation products belong;

(b)

the parties’ combined market share does not exceed 20 % on the relevant market(s) to which the downstream products belong.

Article 4 Application of the market share threshold

For the purposes of applying the market share threshold provided for in Article 3, the following rules shall apply:

(a)

market shares shall be calculated on the basis of market sales value; if market sales value data are not available, estimates based on other reliable market information, including market sales volumes, may be used;

(b)

market shares shall be calculated on the basis of data relating to the preceding calendar year or, where the preceding calendar year is not representative of the parties’ position in the relevant market(s), market shares shall be calculated as an average of the parties’ market shares for the 3 preceding calendar years;

(c)

the market share held by the undertakings referred to in Article 1(2), point (5) shall be apportioned equally to each undertaking having one or more of the rights or powers listed in Article 1(2), point (1);

(d)

if the market shares referred to in Article 3 are initially not more than 20 %, but subsequently rise above that level in at least one of the relevant markets, the exemption established in Article 2 shall continue to apply for a period of 2 consecutive calendar years following the year in which the 20 % threshold was first exceeded.

Article 5 Hardcore restrictions

The exemption established in Article 2 shall not apply to specialisation agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object any of the following:

(a)

the fixing of prices when selling the specialisation products to third parties, with the exception of the fixing of prices charged to immediate customers in the context of joint distribution;

(b)

the limitation of output or sales, with the exception of:

(i)

provisions on the agreed amount of products in the context of unilateral or reciprocal specialisation agreements;

(ii)

the setting of capacity and production volumes in the context of a joint production agreement;

(iii)

the setting of sales targets in the context of joint distribution;

(c)

the allocation of markets or customers.

Article 6 Withdrawal in individual cases by the Commission

1.   The Commission may withdraw the benefit of the exemption established by this Regulation, pursuant to Article 29(1) of Regulation (EC) No 1/2003, where it finds, in any particular case, that a specialisation agreement to which the exemption established by this Regulation applies nevertheless has effects which are incompatible with Article 101(3) of the Treaty.

2.   The Commission may withdraw the benefit of the exemption established by this Regulation pursuant to Article 29(1) of Regulation (EC) No 1/2003 in particular where the relevant market is highly concentrated and competition is already weak, for example due to one or more of the following:

(a)

the individual market positions of other market participants;

(b)

links between other market participants created by parallel specialisation agreements;

(c)

links between the parties and other market participants.

Article 7 Withdrawal in individual cases by the competition authority of a Member State

The competition authority of a Member State may withdraw the benefit of the exemption established by this Regulation where the conditions of Article 29(2) of Regulation (EC) No 1/2003 are fulfilled.

Article 8 Transitional period

The prohibition laid down in Article 101(1) of the Treaty shall not apply during the period from 1 July 2023 to 30 June 2025 in respect of agreements already in force on 30 June 2023 which do not satisfy the conditions for exemption established by this Regulation but which satisfy the conditions for exemption established by Regulation (EU) No 1218/2010.

Article 9 Entry into force and application

This Regulation shall enter into force on 1 July 2023.

It shall apply until 30 June 2035.