Thirdly, if the agreement does not contain severe vertical restraints, are the parties` positions on the relevant markets so weak that the Commission`s de minimis notice can apply? If the de minimis disclosure criteria are met (question 8), the Commission will not consider the agreement to fall within the scope of Article 101(1) as it does not `appreciably` restrict competition. However, the ECJ`s GlaxoSmithKline judgment also emphasises that the Commission is required to properly examine the arguments and evidence put forward by a party in the context of the Article 101(3) examination of the advisability of a derogation from the prohibition laid down in Article 101(1). If the agreement in question is subject to another EU block exemption, the vertical agreement block exemption does not apply. Other common block exemptions are the motor vehicle block exemption, the technology transfer block exemption, the R&D block exemption and the specialisation agreement block exemption. There are two ways of seeing the tolerance of a certain unilateral policy. First, tolerance can be inferred from the powers conferred on the parties in a general agreement established in advance. If the terms of the agreement […] provide for or authorize a party to subsequently adopt a specific unilateral policy binding on the other party, the tolerance of that policy by the other party may be established on its basis. Second, in the absence of such an explicit tolerance, the Commission can demonstrate the existence of tacit tolerance. In that regard, it must be demonstrated, first, that one party explicitly or implicitly requires the cooperation of the other party in order to implement its unilateral policy and, second, that the other party has complied with that requirement through the implementation of that unilateral policy.
Have any decisions or guidelines on vertical restraints in any way addressed the differences in treatment between different types of Internet distribution channels? In particular, are there any developments regarding “platform bans”? If the agreement contains basic restrictions (see question 15), the safety port created by the vertical block exemption does not apply at all. This means that other less stringent restrictions of the agreement that would otherwise have benefited from the protection of the vertical block exemption cannot benefit from that protection. Article 101 may apply to vertical restraints (within the meaning of question 2): If this is not the case, one of the obligations accepted by the Commission was that Apple and the publishers would terminate e-book agency contracts which provided publishers, as principals, with the determination of consumer prices (see questions 19 to 22) and contained most-favoured-nation clauses (see questions 24 and 25). It should also be noted that, where agency contracts are concluded, EU officials may enjoy substantial protection under the EU Commercial Agents Directive and the implementing measures adopted in this context at Member State level. . . .